dvd-discuss.archive.0003100640 764 764 15677175 7071077674 15413 0ustar wseltzerwseltzerFrom dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 00:46:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15552 for dvd-discuss-outgoing; Wed, 1 Mar 2000 00:46:44 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA15549 for ; Wed, 1 Mar 2000 00:46:39 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id VAA29255 for ; Tue, 29 Feb 2000 21:47:49 -0800 (PST) Message-ID: <38BCAEB7.422A9A9B@cdpage.com> Date: Tue, 29 Feb 2000 22:46:31 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) References: <89i48b$8u8$1@blowfish.isaac.cs.berkeley.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "David A. Wagner" wrote: > In article , > Frank Andrew Stevenson wrote: > > Since we have already established that DVD movies are programs, > > Have we? All DVD movies, or just some? All. You can't publish a DVD movie without making it a program. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 01:07:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA15732 for dvd-discuss-outgoing; Wed, 1 Mar 2000 01:07:21 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc245.tampabay.rr.com [24.26.88.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA15729 for ; Wed, 1 Mar 2000 01:07:19 -0500 Received: (qmail 2714 invoked by uid 502); 1 Mar 2000 06:12:30 -0000 Date: Wed, 1 Mar 2000 01:12:30 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Taking a break Message-ID: <20000301011230.K23265@linuxpower.org> References: <200002292328.PAA06752@ns1.filetron.com> <38BC5B8C.E559101B@cdpage.com> <38BC75A9.F5C27BB7@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38BC75A9.F5C27BB7@cdpage.com>; from Dana Parker on Tue, Feb 29, 2000 at 06:43:05PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Guys - I'm taking a break from this. It may be a week or two before I post again, and I don't know when or if the next draft of the FAQ will be up. The long and short of it is, we're not handling the legal end of this with the nuances and respect that we should be doing. This list has unfortunately been laced with pro-DeCSS, Slashdot-style debate, and to be honest most of us don't have the background to deal with these questions properly. In the process of dealing offline with both attorneys and techies, this problem has grown more and more apparent to me. If some bonafide attorneys want to actually participate in this forum, then wonderful. Otherwise, we're not accomplishing anything. See you in a week or two. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 01:34:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16052 for dvd-discuss-outgoing; Wed, 1 Mar 2000 01:34:27 -0500 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16048 for ; Wed, 1 Mar 2000 01:34:25 -0500 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA05331 for ; Tue, 29 Feb 2000 22:33:49 -0800 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id VAA09352; Tue, 29 Feb 2000 21:57:55 -0800 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Programs sharing information Date: 29 Feb 2000 21:56:48 -0800 Organization: A poorly-installed InterNetNews site Lines: 12 Distribution: isaac Message-ID: <89ibf0$946$1@blowfish.isaac.cs.berkeley.edu> References: <899le1$t0k$1@blowfish.isaac.cs.berkeley.edu> <20000228174617.I23265@linuxpower.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000228174617.I23265@linuxpower.org>, you wrote: > This is the reason why we argued for nearly a week about Turing Completeness. Turing Completeness is a property of a language, not of a hunk of data, so one might still argue some more. But, as you later say -- > Fortunately or unfortunately, this entire question is moot legally, because > the legal definition as defined in 17 USC 101 is so vague and general that > you could claim that JPEG is a program. Ok. Thanks for the FAQ pointer. One thing the FAQ doesn't say is whether / why the definition in 17 USC 101 is controlling. Any thoughts on that? From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 03:44:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA16875 for dvd-discuss-outgoing; Wed, 1 Mar 2000 03:44:49 -0500 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA16872 for ; Wed, 1 Mar 2000 03:44:47 -0500 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 12Q4iQ-00070M-00; Wed, 1 Mar 2000 09:42:43 +0100 Date: Wed, 1 Mar 2000 09:42:42 +0100 (CET) From: Frank Andrew Stevenson X-Sender: frank@odin To: "David A. Wagner" cc: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) In-Reply-To: <89i48b$8u8$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 29 Feb 2000, David A. Wagner wrote: > In article , > Frank Andrew Stevenson wrote: > > Since we have already established that DVD movies are programs, > > Have we? All DVD movies, or just some? http://www.yanman.com/HomeTheater/Reviews/DragonslairReview.htm This example of the capabilities of the DVDs scripting language surfaced on the list some days ago. Here the classical Dragon's Lair game has been ported to the DVD gaming platform. Most DVD movies do not have the same level of interactivity, and compared to this tilte will seem more like a "Hello World" program. "Hello world" is still a program, even though the code may seem vastly inferior to say Windows 2000 in code size, and complexity. The defintion for "computer program" in title 17 U.S.C. A ''computer program'' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. To answer your question, yes it can be argued that all DVD movies meet the definition of 'computer program' in the united states copyright law. frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 08:10:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA17805 for dvd-discuss-outgoing; Wed, 1 Mar 2000 08:10:20 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA17802 for ; Wed, 1 Mar 2000 08:10:19 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id IAA13359 for ; Wed, 1 Mar 2000 08:11:17 -0500 (EST) Date: Wed, 1 Mar 2000 08:11:17 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) In-Reply-To: <89i48b$8u8$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 29 Feb 2000, David A. Wagner wrote: > In article , > Frank Andrew Stevenson wrote: > > Since we have already established that DVD movies are programs, > > Have we? All DVD movies, or just some? > I thought the Senate Conference report implied that the senate had a very narrow definition of program in mind. If you plan to use "original intent" you can't say that the Senate believed that DVD-movies were content. Now, if you really think about, yes, DVD movies are programs, but the Senate wasn't thinking that hard about it. Of course, if you toss "original intent" out the window, you can argue that "DVD-movies" fall into the program category. You wouldn't be wrong, neccesarily, but you would not endear yourself to judges of a more conservative bent. Jeremy ERwin From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 08:44:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01032 for dvd-discuss-outgoing; Wed, 1 Mar 2000 08:44:26 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA01029 for ; Wed, 1 Mar 2000 08:44:25 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id JAA07578 for ; Wed, 1 Mar 2000 09:57:09 -0500 (EST) Date: Wed, 1 Mar 2000 09:57:09 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 1 Mar 2000, Jeremy A Erwin wrote: > I thought the Senate Conference report implied that the senate had a very > narrow definition of program in mind. If you plan to use "original > intent" you can't say that the Senate believed that DVD-movies were > content. Now, if you really think about, yes, DVD movies are programs, > but the Senate wasn't thinking that hard about it. > Of course, if you toss "original intent" out the window, you can argue > that "DVD-movies" fall into the program category. You wouldn't be wrong, > neccesarily, but you would not endear yourself to judges of a more > conservative bent. The text is as follows: Subsection (j) defines ``interoperability'' as the ability of computer programs to exchange information, and for such programs mutually to use the information which has been exchanged. The seamless exchange of information is an key element of creating such an interoperable independently created program. This provision applies to computer programs as such, regardless of their medium of fixation and not to works generally, such as music or audiovisual works, which may be fixed and distributed in digital form. Accordingly, since the goal of interoperability is the touchstone of the exceptions contained in subsections 1201(g) through (j), nothing in those subsections can be read to authorize the circumvention of any technological protection measure that controls access to any work other than a computer program, or the trafficking in products or services for that purpose. Senate Report 105-190 Page 33 (It's under Section by Section Analysis-Title I:WIPO implementation) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 09:26:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA16099 for dvd-discuss-outgoing; Wed, 1 Mar 2000 09:26:33 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA15950 for ; Wed, 1 Mar 2000 09:26:08 -0500 Received: (qmail 27386 invoked by uid 60001); 1 Mar 2000 15:37:48 -0000 Message-ID: <20000301153748.27385.qmail@web508.mail.yahoo.com> Received: from [131.44.121.4] by web508.mail.yahoo.com; Wed, 01 Mar 2000 07:37:48 PST Date: Wed, 1 Mar 2000 07:37:48 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Programs sharing information To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "David A. Wagner" wrote: > Ok. Thanks for the FAQ pointer. One thing the FAQ doesn't say is > whether / why the definition in 17 USC 101 is controlling. Any thoughts > on that? Because the law we're being sued under is 17 USC 1201 and 17 USC 101 is the definitions section for all of Title 17 and begins with: "Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:" __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 09:37:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20493 for dvd-discuss-outgoing; Wed, 1 Mar 2000 09:37:13 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA20311 for ; Wed, 1 Mar 2000 09:37:11 -0500 Received: (qmail 22006 invoked by uid 60001); 1 Mar 2000 15:49:52 -0000 Message-ID: <20000301154952.22005.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Wed, 01 Mar 2000 07:49:52 PST Date: Wed, 1 Mar 2000 07:49:52 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy A Erwin wrote: > I thought the Senate Conference report implied that the senate had a > very narrow definition of program in mind. What are you refering too, exactly? I don't recall having this impression, but maybe I didn't read the part you did. > [...] If you plan to use "original > intent" you can't say that the Senate believed that DVD-movies were > content. Now, if you really think about, yes, DVD movies are > programs, but the Senate wasn't thinking that hard about it. > Of course, if you toss "original intent" out the window, you can > argue that "DVD-movies" fall into the program category. You wouldn't > be wrong, neccesarily, but you would not endear yourself to judges > of a more conservative bent. The best evidence of "original intent" is the plain text of the law. If the Senate had intended to narrow the definition of a computer program, then they could have introduced an amendment to modify 17 US 101. Even if this WAS their intent, it's not up to just them, since the House and President would have to sign off. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 11:10:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30444 for dvd-discuss-outgoing; Wed, 1 Mar 2000 11:10:13 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA30441 for ; Wed, 1 Mar 2000 11:10:12 -0500 Received: (qmail 14662 invoked by uid 60001); 1 Mar 2000 17:22:54 -0000 Message-ID: <20000301172254.14661.qmail@web506.mail.yahoo.com> Received: from [131.44.121.4] by web506.mail.yahoo.com; Wed, 01 Mar 2000 09:22:54 PST Date: Wed, 1 Mar 2000 09:22:54 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Taking a break To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > I'm taking a break from this. It may be a week or two before I post > again, and I don't know when or if the next draft of the FAQ will be up. Enjoy your "vacation", Rob. I'm sorry you are discouraged. Perhaps someone else will volunteer to maintaing the FAQ in the mean time. For reasons I'll explain below, I think it is important to keep the progress moving on this. > The long and short of it is, we're not handling the legal end of this > with the nuances and respect that we should be doing. This list has > unfortunately been laced with pro-DeCSS, Slashdot-style debate, > and to be honest most of us don't have the background to deal with > these questions properly. In the process of dealing offline with both > attorneys and techies, this problem has grown more and more > apparent to me. > If some bonafide attorneys want to actually participate in this > forum, then wonderful. Otherwise, we're not accomplishing anything. I think you raise a good point that we need to sharpen the legal rigor here, but I don't think that this is the exclusive domain of attorneys. There are many things the non-lawyers can do to improve this. I think this list is supposed to be a place where you can "try out" ideas and advocate a position. For every 10 ideas posted, 9 get shot down under cross examination, but the one that stands is a gem. More importantly, the process itself is extremely educational. The critical next step, though, is filtering out the good ideas. This is why I think it's critical that the FAQ keep going. I think to address the problem Rob has raised, we need to think of other ways to distill the wisdom out of the list. Anybody have ideas on other ways to do this? I do agree that more lawyers and/or law-students would improve the quality of discussion, so maybe we should think of ways to attract interested people with legal backgrounds. What do other people think about this? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 11:37:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02307 for dvd-discuss-outgoing; Thu, 17 Feb 2000 14:33:21 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc63.tampabay.rr.com [24.26.88.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA02304 for ; Thu, 17 Feb 2000 14:33:18 -0500 Received: (qmail 11147 invoked by uid 502); 17 Feb 2000 19:37:07 -0000 Date: Thu, 17 Feb 2000 14:37:07 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time-Warner's comments on 1201(a)(1) Message-ID: <20000217143707.L6509@linuxpower.org> References: <20000217124853.C10572@nacs.net> <20000217100939.U4856@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000217100939.U4856@cty-alum.org>; from Seth David Schoen on Thu, Feb 17, 2000 at 10:09:39AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Feb 17, 2000 at 10:09:39AM -0800, Seth David Schoen wrote: > Jason M. Felice writes: > > "Fair use" is _not mentioned in the Constitution_; it's only defined by > Title 17, to which the DMCA is an amendment. > > Many people believe that fair use is implied by the purpose given in the > Copyright Clause, or by other things. > > But the DMCA doesn't directly limit fair use; it allows private entities > to effectively limit fair use, and then sue if people evade their > limitations. I think this is an extremely important point that needs to be hammered home. The destruction of fair use by Chapter 12 is not a direct cause of 12 but a side-effect of the enforcement of 12. While 1201c1 says that no part of this section will infringe upon rights or defenses defined elsewhere in the Title, including fair use, it contradicts the rest of the law in practice. By allowing a copyright owner a technological "access control" method protected by law, even though "on paper" fair use is still protected it now becomes a gift from the copyright owner rather than a legal right. In other words, fair use goes away. I'm not sure Kaplan will get this; he seems to be of the breed that thinks he knows "enough", and isn't really interested in knowing more. But I do think that an appeals court will understand this. A lot of people - including myself - have been calling this a constitutional issue. Apart from the possible free speech implications (which would seem only to apply if it were source being sued rather than a Windows binary), where exactly are we getting this from? What constitutional references does Chapter 12 violate, exactly? I hate to admit it, but I'm not completely sure. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 11:47:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11777 for dvd-discuss-outgoing; Wed, 1 Mar 2000 11:47:25 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA11774 for ; Wed, 1 Mar 2000 11:47:24 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA01477 for ; Wed, 1 Mar 2000 13:00:08 -0500 (EST) Date: Wed, 1 Mar 2000 13:00:08 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) In-Reply-To: <20000301154952.22005.qmail@web504.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 1 Mar 2000, Bryan Taylor wrote: > > --- Jeremy A Erwin wrote: > > > I thought the Senate Conference report implied that the senate had a > > very narrow definition of program in mind. > > What are you refering too, exactly? I don't recall having this > impression, but maybe I didn't read the part you did. Senate Report 105-190 Title I Wipo Treaties Implementation Commentary on 1201j (page 33) I am not a lawyer, nor a law student, as probably is clear from my postings. Whether or not original intent can be best proven with only the text of the law, or in conjunction with House/Senate committee reports is beyond me-- but that same report is referenced in Universal vs Reimeirdes, (Memorandum opinion, SDNY, 2000), albeit in a different context. http://www.dvd-copy.com/legal/universal_vs_Reimerdes-Memorandum_Opinion-020200.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 12:49:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00540 for dvd-discuss-outgoing; Wed, 1 Mar 2000 12:49:35 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA00463 for ; Wed, 1 Mar 2000 12:49:34 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id OAA29985 for ; Wed, 1 Mar 2000 14:02:19 -0500 (EST) Date: Wed, 1 Mar 2000 14:02:19 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break In-Reply-To: <20000301172254.14661.qmail@web506.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 1 Mar 2000, Bryan Taylor wrote: > > I think this list is supposed to be a place where you can "try out" > ideas and advocate a position. For every 10 ideas posted, 9 get shot > down under cross examination, but the one that stands is a gem. More > importantly, the process itself is extremely educational. > > The critical next step, though, is filtering out the good ideas. This > is why I think it's critical that the FAQ keep going. I think to > address the problem Rob has raised, we need to think of other ways to > distill the wisdom out of the list. Anybody have ideas on other ways to > do this? What I think would be nice would be a list of "red herrings." For instance, I became involved in bit of a "flame war" over whether DVDs decayed over time, because I believed that it somehow fed into the right to backup software ("fair use.") Such discussions naturally take up a lot of bandwidth. As it stands now, there are hundreds of messages, many of which go nowhere, many of which do. I'd like to see a summary of discussions-e.g. antitrust against MPAA, DVDCCA lifespan of DVD and backups Program vs non-Program Application of Reverse-Engineering to Content Creation vs Content Display along with a brief explanation of why the argument is worth developing, off-topic, or based on a misunderstanding of law. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 13:02:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06151 for dvd-discuss-outgoing; Wed, 1 Mar 2000 13:02:32 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA06146 for ; Wed, 1 Mar 2000 13:02:28 -0500 Received: (qmail 7376 invoked by uid 60001); 1 Mar 2000 19:14:44 -0000 Message-ID: <20000301191444.7375.qmail@web508.mail.yahoo.com> Received: from [131.44.121.4] by web508.mail.yahoo.com; Wed, 01 Mar 2000 11:14:43 PST Date: Wed, 1 Mar 2000 11:14:43 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy A Erwin wrote: > On Wed, 1 Mar 2000, Bryan Taylor wrote: > > What are you refering too, exactly? I don't recall having this > > impression, but maybe I didn't read the part you did. > > Senate Report 105-190 > Title I Wipo Treaties Implementation > Commentary on 1201j (page 33) Thanks for the site. It is almost word for word the same as the House's analysis that I posted: http://eon.law.harvard.edu/archive/dvd-discuss/msg00897.html The House's version was numbered closer to that of the final law. I think that, taken as a whole, the section is NOT, as is alleged by judge Kaplan and others, averse to the kind of work done to create DeCSS. To quote the Senate report "The purpose of this section is to foster competition and innovation in the computer and software industry.". I think one sentence in particular is highly responsible for the misunderstanding. It's the one at the end of the section. Taken out of context it can seem very damning. The sentence reads, in relevant part: " ... the Committee emphasizes that nothing in those subsections can be read to authorize the circumvention of any technological protection measure that controls access to any work other than a computer program, ..." Out of context, this can easily be mis-interpreted, because the phrase 'other than a computer program' might seem to modify 'work'. By reading the previous paragraphs, and the text of (f)(2), you realize that 'other than a computer program' actually modifies 'measure'. For example, the House report also wrote: "Thus, Section 102(f)(2) creates an exception to the prohibition on making circumvention tools contained in Sections 102(a)(2) and 102(b)(1). These excepted tools can be either software or hardware. Once again, though, Section 102(f)(2) limits any person from acting in a way that constitutes infringing activity." The 'infringing' part is important. You cannot reverse engineer your way into a copyright licence to the underlying content. This is what the report(s) mean when they say they apply to 'computer programs only' and not to works generally. There are two models for meeting the reverse engineering clause in (f)(2,3,4). The first is that DeCSS (the independantly created program) exchanges information in .vob files with the authoring program (eg DVDMotion) used to make the DVD. The second is that DeCSS exchange multi-media content with the interface control program that is embedded into the .vob files, and relies on the fact that DVD's contain much more than just simple movies like a VCR. In both cases a computer program, XingDVD, was reengineered to create a rival, DeCSS which interoperates with other copmuter programs by exchanging information that is not copyright infrigement. > I am not a lawyer, nor a law student, as probably is clear from my > postings. Whether or not original intent can be best proven with only > the text of the law, or in conjunction with House/Senate committee > reports is beyond me-- but that same report is referenced in Universal vs > Reimeirdes, (Memorandum opinion, SDNY, 2000), albeit in a different > context. I think that the plaintiffs and judge latched on to the wrong one of two possible interpretations of the above sentence. I don't think their interpretation can be squared with the actual text of the law, so that is why I said the law itself is the strongest evidence of legislative intent. Legislative history can help interpret the law, but it can't be used to change the meaning of the law. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 13:29:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15223 for dvd-discuss-outgoing; Wed, 1 Mar 2000 13:29:34 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA15220 for ; Wed, 1 Mar 2000 13:29:30 -0500 Received: (qmail 28207 invoked by uid 60001); 1 Mar 2000 19:42:05 -0000 Message-ID: <20000301194205.28206.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Wed, 01 Mar 2000 11:42:05 PST Date: Wed, 1 Mar 2000 11:42:05 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Taking a break To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy A Erwin wrote: > What I think would be nice would be a list of "red herrings." For > instance, I became involved in bit of a "flame war" over whether DVDs > decayed over time, because I believed that it somehow fed into the > right to backup software ("fair use.") Such discussions naturally take up > a lot of bandwidth. I think that's a great idea. One thing, I've struggled with here, is that sometimes reasonable people may differ. For example, I argued for a while that the Turing Completeness thread was a red herring, but others disagreed. We need some way to objectively define the 'consensus' opinion without stifling the very discussions that might change it. I was kind of thinking of some kind of slashdot like moderation, except that everybody gets a vote. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 13:44:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20342 for dvd-discuss-outgoing; Wed, 1 Mar 2000 13:44:20 -0500 Received: from localhost.localdomain (root@w129.z208177180.chi-il.dsl.cnc.net [208.177.180.129]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA20339 for ; Wed, 1 Mar 2000 13:44:19 -0500 Received: from bigbrother.net (IDENT:sterno@localhost.localdomain [127.0.0.1]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id NAA21187 for ; Wed, 1 Mar 2000 13:55:07 -0600 Message-ID: <38BD7597.CAA31497@bigbrother.net> Date: Wed, 01 Mar 2000 13:55:03 -0600 From: Steve Stearns X-Mailer: Mozilla 4.61 [en] (X11; U; Linux 2.2.12-20 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break References: <20000301194205.28206.qmail@web507.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > One thing, I've struggled with here, is that sometimes reasonable > people may differ. For example, I argued for a while that the Turing > Completeness thread was a red herring, but others disagreed. We need > some way to objectively define the 'consensus' opinion without stifling > the very discussions that might change it. > I was kind of thinking of some kind of slashdot like moderation, except > that everybody gets a vote. Perhaps what we should have is a sort of finding of fact for the list. Basically what would happen is that through some system each person could post a statement of what they considered to be fact. Then each person involved with the discussion could give a +1, -1 rating to that fact to indicate whether they agree with the statement. Then you could search the results and come up with the statements that had the most positive support. For example, I might make this statement: "DVD's will degrade in 10 years and this could have singificance for fair use by making it important to be able to back up the media". Now, I may get some posivitve votes for the concept, but lets say that I'm wrong on the number of years it takes for a DVD to degrade, so I get some negative votes because of the inaccuracy. You could then post the statement: "DVD's will degrade in 50 years and ..." Because your statement was more accurate, you would tend to get more positve votes. Once we've got a list of statements that are generally supported as being true and useful, it should give a pretty good road map to how this case should work. It also might be useful to be able to associate one statement with another. So that if a series of statements logically override eachother it can be easily followed (like in my example). If people like the idea of such a system, I've been trying to come up with a project to work on and this sounds like one I could get into. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 14:01:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29021 for dvd-discuss-outgoing; Wed, 1 Mar 2000 14:01:20 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA29017 for ; Wed, 1 Mar 2000 14:01:18 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id MAA03379 for dvd-discuss@eon.law.harvard.edu; Wed, 1 Mar 2000 12:23:06 -0800 Date: Wed, 1 Mar 2000 12:23:05 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000301122305.F2187@duskglow.com> References: <20000301194205.28206.qmail@web507.mail.yahoo.com> <38BD7597.CAA31497@bigbrother.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <38BD7597.CAA31497@bigbrother.net>; from sterno@bigbrother.net on Wed, Mar 01, 2000 at 01:55:03PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu But that means nothing. What Ron has been trying to get across is that what we consider to be fact, EVEN BY POPULAR CONSENSUS, is essentially worthless as far as the law is concerned. It doesn't matter how much we moderate, till we're blue in the face, it won't make fallacies correct and it won't make what is correct fallacies. Just because we have the audience of lawyers in this case does not make us special and it does not give our view of the facts weight. If we cannot *back up our facts*, using references, legal citations, trade publications, whatever, our input is worthless past the ramblings of a bunch of techies with wishful thinking. If we do something like this it not only will be useless, it will end up *wasting the time* of the very lawyers we are trying to assist. I've been watching this list for quite a while. There's a bunch of good things coming off of it, but there is just as much, pardon my french, BS. Finding some way to skim the cream off the top is a good idea, but it must be through a rigorous program of research, factfinding, and debate. Not just posting the fact and moderating it up or down. That would be worse than useless and a waste of eveyone's time. If you want to do it by debate, that's one thing, debate the hell out of it and post a faq. Input from a few lawyers wouldn't hurt, either. (hinthint). Maybe a slash-like message board with a DIFFERENT kind of moderation, one that's more attuned to what we're trying to accomplish. Maybe with a (maybe anonymous) lawyer working behind the scenes to rate the comments and decide when debate has become fruitless. I'm sorry if this is a little strong, I've been watching this list for quite a while, and we have some good minds here, but we cannot let our wishful thinking obscure the facts and the process of factfinding, research, and most importantly, *working within reality*. The reality is that we're facing a bad law and some overly militant (insert expletive here) who want to litigate our freedom of expression out of existence. This isn't helping. We're trying to "hack" the legal system here. We're going to have to get used to the fact that the rules are different. You can't compile the US code. --Russell On Wed, Mar 01, 2000 at 01:55:03PM -0600, Steve Stearns wrote: > > Perhaps what we should have is a sort of finding of fact for the list. > Basically what would happen is that through some system each person could > post a statement of what they considered to be fact. Then each person > involved with the discussion could give a +1, -1 rating to that fact to > indicate whether they agree with the statement. Then you could search the > results and come up with the statements that had the most positive > support. > > For example, I might make this statement: > > "DVD's will degrade in 10 years and this could have singificance for fair > use by making it important to be able to back up the media". > > Now, I may get some posivitve votes for the concept, but lets say that I'm > wrong on the number of years it takes for a DVD to degrade, so I get some > negative votes because of the inaccuracy. You could then post the > statement: > > "DVD's will degrade in 50 years and ..." > > Because your statement was more accurate, you would tend to get more > positve votes. Once we've got a list of statements that are generally > supported as being true and useful, it should give a pretty good road map > to how this case should work. It also might be useful to be able to > associate one statement with another. So that if a series of statements > logically override eachother it can be easily followed (like in my > example). > > If people like the idea of such a system, I've been trying to come up with > a project to work on and this sounds like one I could get into. > > ---Steve -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 14:06:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31696 for dvd-discuss-outgoing; Wed, 1 Mar 2000 14:06:51 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31626 for ; Wed, 1 Mar 2000 14:06:50 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 88CC176EA; Wed, 1 Mar 2000 14:20:01 -0600 (CST) From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Date: Wed, 1 Mar 2000 13:39:22 -0600 X-Mailer: KMail [version 1.0.28] Content-Type: text/plain References: <20000301191444.7375.qmail@web508.mail.yahoo.com> In-Reply-To: <20000301191444.7375.qmail@web508.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00030114200000.27195@arh1176.urh.uiuc.edu> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 01 Mar 2000, Bryan Taylor wrote: > There are two models for meeting the reverse engineering clause in > (f)(2,3,4). The first is that DeCSS (the independantly created program) > exchanges information in .vob files with the authoring program (eg > DVDMotion) used to make the DVD. The second is that DeCSS exchange > multi-media content with the interface control program that is embedded > into the .vob files, and relies on the fact that DVD's contain much > more than just simple movies like a VCR. In both cases a computer > program, XingDVD, was reengineered to create a rival, DeCSS which > interoperates with other copmuter programs by exchanging information > that is not copyright infrigement. I think you are misunderstanding how the reverse engineering exemption could apply to DeCSS. The case is not about the creation of DeCSS, it is about it's distribution. The MPAA is not (currently) challenging the reverse engineering of the Xing player, or the creation of DeCSS. Since apparently the Xing player did not keep it's key encrypted internally, 1201 would not apply to that anyway. What is relevant is that DeCSS's breaking of the scrambling of the .vob files allows them to interact with other DVD playing software. This might come under 1201(f)(2). That paragraph states: (2) (...) A person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, (...) for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title. If we can convince the judge that DeCSS is a means as described here, then it should be easy to get the distribution of DeCSS exempted under 1201(f)(3). I suppose it is possible that the current defendants in New York will be disqualified because of the way they advertised DeCSS on their pages (based only on faint memory of who they are). Here's paragraph (f)(3): (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section. > I think that the plaintiffs and judge latched on to the wrong one of > two possible interpretations of the above sentence. I don't think their > interpretation can be squared with the actual text of the law, so that > is why I said the law itself is the strongest evidence of legislative > intent. Legislative history can help interpret the law, but it can't be > used to change the meaning of the law. Well, I think both of the interpretations you presented are wrong. DeCSS does not interoperate with anything, but it is a means for LiViD (for example) to interact with the .vob files on DVDs. As I've been writing this, I see another avenue of attack for this. We might be able to say that even if DVD video is not a "program" as defined by the judge, the definition of "interoperability" given in paragraph (f)(4) allows circumvention if it is for the purpose of allowing one program (LiViD) to use the information (DVD video) it gets from another program (DVD drive controlling software, linux (or windows I suppose) kernel modules even). Here's the text of (f)(4) for anyone not familiar with it: (4) For purposes of this subsection, the term ''interoperability'' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged. Anyone see terrible flaws with that argument? -- Steven Barker scbarker@uiuc.edu QOTD: "She's about as smart as bait." From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 14:36:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07395 for dvd-discuss-outgoing; Wed, 1 Mar 2000 14:36:36 -0500 Received: from localhost.localdomain (root@w129.z208177180.chi-il.dsl.cnc.net [208.177.180.129]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07392 for ; Wed, 1 Mar 2000 14:36:35 -0500 Received: from bigbrother.net (IDENT:sterno@localhost.localdomain [127.0.0.1]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id OAA21223 for ; Wed, 1 Mar 2000 14:47:23 -0600 Message-ID: <38BD81DA.2492E0EE@bigbrother.net> Date: Wed, 01 Mar 2000 14:47:22 -0600 From: Steve Stearns X-Mailer: Mozilla 4.61 [en] (X11; U; Linux 2.2.12-20 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break References: <20000301194205.28206.qmail@web507.mail.yahoo.com> <38BD7597.CAA31497@bigbrother.net> <20000301122305.F2187@duskglow.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > What Ron has been trying to get across is that what we consider to be fact, > EVEN BY POPULAR CONSENSUS, is essentially worthless as far as the law is > concerned. It doesn't matter how much we moderate, till we're blue in the > face, it won't make fallacies correct and it won't make what is correct > fallacies. No, but the theory is that those things that are fallacies will not get promoted and those things that are correct will. Those thoughts that are clear well documented and concise will be the ones that get the highest rating. > Just because we have the audience of lawyers in this case does not make us > special and it does not give our view of the facts weight. If we cannot > *back up our facts*, using references, legal citations, trade publications, > whatever, our input is worthless past the ramblings of a bunch of techies with > wishful thinking. What I would suggest is that the "ramblings of a bunch of techies" is in fact useful if you can sort out the good and useful ideas from the background noise of the list. The techies can discuss the technical issues involved and then the lawyers, seeing the opinions and ideas thrown out by the techies can do the work of crafting a useful legal strategy out of that. > I've been watching this list for quite a while. There's a bunch of good > things coming off of it, but there is just as much, pardon my french, BS. > Finding some way to skim the cream off the top is a good idea, but it must > be through a rigorous program of research, factfinding, and debate. Not > just posting the fact and moderating it up or down. The problem with the debate is that often the good ideas get lost in the background noise or get directed off on to tangents that are meaningless. The idea I just threw out may not be the ideal solution, but I think it is important that we try to find a good way to insure that the good ideas don't get lost in the noise. > That would be worse > than useless and a waste of eveyone's time. If you want to do it by debate, > that's one thing, debate the hell out of it and post a faq. Input from a > few lawyers wouldn't hurt, either. (hinthint). Maybe a slash-like message > board with a DIFFERENT kind of moderation, one that's more attuned to what > we're trying to accomplish. Maybe with a (maybe anonymous) lawyer working > behind the scenes to rate the comments and decide when debate has become > fruitless. Hmmmmm.... Okay, well what about the notion of having this moderation system but instead of having anybody be able to move them up or down, only a select few (lawyers probably) have the ability to moderate. That way we can isolate specific concepts and make them easy to access. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 15:10:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17026 for dvd-discuss-outgoing; Wed, 1 Mar 2000 15:10:15 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17023 for ; Wed, 1 Mar 2000 15:10:04 -0500 Received: (qmail 14675 invoked by uid 60001); 1 Mar 2000 21:22:40 -0000 Message-ID: <20000301212240.14673.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Wed, 01 Mar 2000 13:22:40 PST Date: Wed, 1 Mar 2000 13:22:40 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steven Barker wrote: > I think you are misunderstanding how the reverse engineering > exemption could apply to DeCSS. The case is not about the creation of > DeCSS, it is about it's distribution. [...] As you actually point out, (f)(3) grants distribution only for tools that meet the (f)(2) exception, so even though the creation of DeCSS occurred extra-territorially, you do have to show DeCSS meets the (f)(2) criterion. > [...] What is relevant is that DeCSS's breaking of the > scrambling of the .vob files allows them to interact with other DVD > playing software. This might come under 1201(f)(2). This is the 2nd model I propose, but to qualify you also have to conclude that the .vob files are the 'other programs' refered to, so you can pass the 'if such means are necessary to achieve such interoperability' test. Fortunately and somewhat surprisingly, the .vob files include code for paging through the parts of the movie. > If we can convince the judge that DeCSS is a means as described here, > then it should be easy to get the distribution of DeCSS exempted under > 1201(f)(3). I suppose it is possible that the current defendants in New > York will be disqualified because of the way they advertised DeCSS on > their pages (based only on faint memory of who they are). [...] Yes. I think (f)(3)'s 'solely' clause may blow it for www.dvd-copy.com, since they are overtly advocating piracy. I don't know about 2600.com . On the other hand, one could argue that the right to 'make them available to others' belongs under 17 USC 106 to the DeCSS copyright holder, MoRE and so it's their intent that's in question. Another arguement is it was MoRE that qualified for (f)(2), so again it's their intent that is the issue. Johansen's GPL'ing of it and contributions to LiViD and repeated statements about Linux in my mind would qualify for the 'solely' clause. > Well, I think both of the interpretations you presented are wrong. > DeCSS does not interoperate with anything, but it is a means for LiViD > (for example) to interact with the .vob files on DVDs. What? Are you saying DeCSS does not 'exchange information' with the .vob file? Isn't that just about ALL it does - read the .vob? For the authoring-to-DeCSS model, are you saying that the .vob file is not 'information' or not 'exchanged' between DeCSS and the authoring program? > We might be able to say that even if DVD > video is not a "program" as defined by the judge, [...] Well actually 'computer program' is defined by 17 USC 101 so broadly that even something as basic as the interface in the movie will qualify. Maybe even html would qualify. > the definition of "interoperability" given in paragraph (f)(4) allows > circumvention if it is for the purpose of allowing one program (LiViD) to > use the information (DVD video) it gets from another program (DVD > drive controlling software, linux (or windows I suppose) > kernel modules even). I didn't refer to LiViD in the interoperability models, because, though DeCSS was created as an intermediate development step in the ongoing effort to create LiViD, it isn't actually part of the LiViD programs, and it runs solely on windows. It was, however 'necessary' in the development effort, because no mpeg2 players were available yet under linux when it DeCSS was created and so windows was used to allow the decryption to be tested. I guess you could define the 'independantly created program' as (DeCSS + mpeg player). This would certainly also work. One pitfall to avoid, though, is that the circumvention is only allowed 'if such means are 'necessary' to get interoperability. The drive controller and the OS will interoperate just fine without requiring the DVD be descrambled. That's why I refered back to the authoring program. The authoring tool and the player can't exchange information at all unless there is a decryption step, thus making DeCSS 'necessary'. In fact, DVDMotion specifically requires a player to work and lists XingDVD as compatible. This clinches the arguement. I think about 1201(f) in terms of this general picture: (Writer Program) ===> Data File ===> (Reader Program) The law says you can reverse engineer and replace either the reader or the writer with your own program, even if this would violate (a)(2) or (b)(1), but in so doing you don't obtain a copyright licence to any data files. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 15:56:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01975 for dvd-discuss-outgoing; Wed, 1 Mar 2000 15:56:51 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA01862 for ; Wed, 1 Mar 2000 15:56:32 -0500 Received: (qmail 4376 invoked by uid 60001); 1 Mar 2000 22:09:16 -0000 Message-ID: <20000301220916.4375.qmail@web506.mail.yahoo.com> Received: from [131.44.121.4] by web506.mail.yahoo.com; Wed, 01 Mar 2000 14:09:16 PST Date: Wed, 1 Mar 2000 14:09:16 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Taking a break To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Russell Miller wrote: > What Ron has been trying to get across is that what we consider to be > fact, EVEN BY POPULAR CONSENSUS, is essentially worthless as > far as the law is concerned. It doesn't matter how much we moderate, > till we're blue in the face, it won't make fallacies correct and it won't > make what is correct fallacies. I have a bit more faith in the peer-review process at play here. Your statements assume that all non-lawyers are completely incompetent when it comes to legal analysis so that even through collaboration and vigorous debate, the result is 'essentially worthless'. I believe the opposite - that by a process of careful examination and cross-examination that is alive here, fallacious ideas will be exposed and rejected by the group. > Just because we have the audience of lawyers in this case does not > make us special and it does not give our view of the facts weight. If we > cannot *back up our facts*, using references, legal citations, trade > publications, whatever, our input is worthless past the ramblings of a > bunch of techies with wishful thinking. I've seen quite a bit of legal citation here. I think you are wrong to assume that anybody here on this list will be impressed by 'wishful thinking' that can't be backed up by the US Code or a court case. I've certainly been quickly 'set right' when I've strayed off course. With the tools like http://www.jurisline.com, etc, available, we have no excuse not to hold ourselves to the same standards real lawyers are held, and everybody knows that. > I'm sorry if this is a little strong, I've been watching this list > for quite a while, and we have some good minds here, but we cannot > let our wishful thinking obscure the facts and the process of factfinding, > research, and most importantly, *working within reality*. What is important is that as our consensus materializes and evolves over time, that it converges to sound legal arguements supported by sound technical reasoning and appropriate legal citation. Any suggestion that helps us converge FASTER is good. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 16:24:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12195 for dvd-discuss-outgoing; Wed, 1 Mar 2000 16:24:42 -0500 Received: from penguin.filetron.com (qmailr@[206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA12146 for ; Wed, 1 Mar 2000 16:24:40 -0500 Received: (qmail 7527 invoked from network); 1 Mar 2000 22:33:04 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 1 Mar 2000 22:33:04 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA14736; Wed, 1 Mar 2000 14:37:36 -0800 Date: Wed, 1 Mar 2000 14:37:36 -0800 Message-Id: <200003012237.OAA14736@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Fwd: Re: Problem... Empty messages and Previous List messages Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hi, I'm getting strange No subject empty messages in my email box. They're appearing not at the top of my mail queue but at the bottom. Second I got a flood of old dvd-discuss@eon.law.harvard.edu list messages sent to me. Very odd. Had 70 msgs. Thx in advance, Rares Also sent to webmaster@linuxstart.com ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 16:26:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12872 for dvd-discuss-outgoing; Wed, 1 Mar 2000 16:26:03 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA12869 for ; Wed, 1 Mar 2000 16:26:02 -0500 Received: from [38.32.11.95] (helo=ip95.bedford3.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12QHlW-0003CU-00; Wed, 1 Mar 2000 17:38:47 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Red Herring #1--DeCSS Date: Wed, 01 Mar 2000 22:37:44 GMT Message-ID: <38c38951.26301622@mail.tiac.net> References: In-Reply-To: X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA12870 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Has anyone actually used DeCSS under Windows? Successfully? Shouldn't the court have to prove it actually works? I finally got a DVD of a public domain movie-- Cabinet of Dr. Caligari (1919)--which seems to be encrypted. (At least it doesn't produce DeCSS' "Error getting disk key. Title might not be encrypted.") I defy the court to download this program from one of the offending sites and use it for anything other than crashes and blue screen errors. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 16:30:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14569 for dvd-discuss-outgoing; Wed, 1 Mar 2000 16:30:54 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA14566 for ; Wed, 1 Mar 2000 16:30:53 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id OAA03716 for dvd-discuss@eon.law.harvard.edu; Wed, 1 Mar 2000 14:52:39 -0800 Date: Wed, 1 Mar 2000 14:52:39 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000301145239.I2187@duskglow.com> References: <20000301220916.4375.qmail@web506.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000301220916.4375.qmail@web506.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Mar 01, 2000 at 02:09:16PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 01, 2000 at 02:09:16PM -0800, Bryan Taylor wrote: > > --- Russell Miller wrote: > > I've seen quite a bit of legal citation here. I think you are wrong to > assume that anybody here on this list will be impressed by 'wishful > thinking' that can't be backed up by the US Code or a court case. I've > certainly been quickly 'set right' when I've strayed off course. With > the tools like http://www.jurisline.com, etc, available, we have no > excuse not to hold ourselves to the same standards real lawyers are > held, and everybody knows that. > No, I'm not assuming that. I just think it's a waste of time to use tools (such as was proposed) that do not assist in making our arguments or items of debate more ironclad. The person I was referring to suggested putting pretty much anything down and just moderating it. That doesn't foster debate. > What is important is that as our consensus materializes and evolves > over time, that it converges to sound legal arguements supported by > sound technical reasoning and appropriate legal citation. Any > suggestion that helps us converge FASTER is good. > But not at the expense of accuracy or soundness of arguments. Faster is not always better, *especially* in this case. We have to be careful that in pursuit of efficiency we don't waste the time of the lawyers who have been kind enough to give us the time of day. I was more railing against the method proposed. The rest of it was just kinda building and I let off steam. Sorry. Seeing Ron being driven away wasn't a very heartening experience. --Russell > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 16:40:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA18135 for dvd-discuss-outgoing; Wed, 1 Mar 2000 16:40:22 -0500 Received: from penguin.filetron.com (qmailr@[206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA18132 for ; Wed, 1 Mar 2000 16:40:20 -0500 Received: (qmail 8900 invoked from network); 1 Mar 2000 22:48:45 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 1 Mar 2000 22:48:45 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA16479; Wed, 1 Mar 2000 14:53:17 -0800 Date: Wed, 1 Mar 2000 14:53:17 -0800 Message-Id: <200003012253.OAA16479@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Red Hering #2 Re: [dvd-discuss] Red Herring #1--DeCSS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Efficacy (is it strong enough) ain't the same as effectiveness (what's it do) rongus@tiac.net (Ron Gustavson) wrote: >Has anyone actually used DeCSS under Windows? > >Successfully? > >Shouldn't the court have to prove it actually works? > >I finally got a DVD of a public domain movie-- >Cabinet of Dr. Caligari (1919)--which seems to be encrypted. >(At least it doesn't produce DeCSS' "Error getting disk key. >Title might not be encrypted.") > >I defy the court to download this program from one of the >offending sites and use it for anything other than crashes and >blue screen errors. > >__________no-∞-do__________ ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 17:20:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31092 for dvd-discuss-outgoing; Wed, 1 Mar 2000 17:20:33 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31089 for ; Wed, 1 Mar 2000 17:20:33 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id SAA26103 for ; Wed, 1 Mar 2000 18:33:18 -0500 (EST) Message-Id: <4.2.2.20000301181644.00b385f0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 01 Mar 2000 18:33:12 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Fwd: Re: Problem... Empty messages and Previous List messages In-Reply-To: <200003012237.OAA14736@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A reboot of the eon box apparently made it cough old messages from the majordomo mailqueue. 70 sounds like a lot, though -- I got 2 or 3. Let me know directly if you continue to see problems. (I'm currently working on a recap of the legal issues raised on the list. I do think there have been a lot of good points, so I hope we can encourage other lawyers to join in without burying them in 900 messages.) --Wendy At 02:37 PM 3/1/00 -0800, you wrote: >Hi, > >I'm getting strange No subject empty messages in my email box. They're >appearing not at the top of my mail queue but at the bottom. > >Second I got a flood of old dvd-discuss@eon.law.harvard.edu list messages >sent to me. > >Very odd. > >Had 70 msgs. > >Thx in advance, > >Rares > >Also sent to webmaster@linuxstart.com > > > >---------------------- >Do you do Linux? :) >Get your FREE @linuxstart.com email address at: http://www.linuxstart.com wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 17:22:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31564 for dvd-discuss-outgoing; Wed, 1 Mar 2000 17:22:05 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31561 for ; Wed, 1 Mar 2000 17:22:04 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id PAA23927 for ; Wed, 1 Mar 2000 15:35:02 -0800 (PST) Message-ID: <38BDA8D7.67C4E795@cdpage.com> Date: Wed, 01 Mar 2000 16:33:43 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS References: <38c38951.26301622@mail.tiac.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson wrote: > Has anyone actually used DeCSS under Windows? > > Successfully? > > Shouldn't the court have to prove it actually works? > > I finally got a DVD of a public domain movie-- > Cabinet of Dr. Caligari (1919)--which seems to be encrypted. > (At least it doesn't produce DeCSS' "Error getting disk key. > Title might not be encrypted.") > > I defy the court to download this program from one of the > offending sites and use it for anything other than crashes and > blue screen errors. > > __________no-∞-do__________ sorry Ron. Bob dl'd it and tried it. It works under Windows and has been tested quite thoroughly (for research purposes of course) here at CD Labs. ;-) -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 17:28:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA01382 for dvd-discuss-outgoing; Wed, 1 Mar 2000 17:28:29 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA01379 for ; Wed, 1 Mar 2000 17:28:28 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id BAA16826 for ; Thu, 2 Mar 2000 01:41:12 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 01:41:11 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Antitrust Theories against MPAA In-Reply-To: <20000224181100.1584.qmail@web506.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 24 Feb 2000, Bryan Taylor wrote: >As I posted in another thread, DVDMotion by MTC is a DVD authoring tool >that requires a compatible DVD-video decoder. Thus at least one such >program exists. In fact, there's a whole list of them in the DVD FAQ. >DVDMotion, in particular lists XingDVD among its compatible decoders. What I meant was that since CSS does not need to be implemented as something the court would consider a program (an ASIC) it is easy to see that CSS itself is not a program. (It is an algo.) Which may create problems with the lingo in 1201. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 17:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05913 for dvd-discuss-outgoing; Wed, 1 Mar 2000 17:50:09 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA05910 for ; Wed, 1 Mar 2000 17:50:08 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id CAA17340 for ; Thu, 2 Mar 2000 02:02:52 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 02:02:51 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definition of Computer Program in 17 USC Sec. 101 In-Reply-To: <20000225005302.19398.qmail@web504.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 24 Feb 2000, Bryan Taylor wrote: >"A 'computer program' is a set of statements or instructions to be used >directly or indirectly in a computer in order to bring about a certain >result." OK. That indirectly means that anything which is touched by a program which uses the information gathered to make at least one conditional jump is a program. If we *really* do not have to establish anything more, we have established that anything stored in digital form is a program. I still think this will not fly without further expert testimony and qualification, but... I suggest we abandon the discussion on Turing completeness. The concept will have been noted by those who need it and expert testimony from a computer science professor ought to suffice for a qualification if need be. With the authority of such a person, it might not even be necessary to bring TC up at all but rely on the fact that there *is* a working definition of a program which the expert can utilize to determine the 'programhood' of a given package of data. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 18:07:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10926 for dvd-discuss-outgoing; Wed, 1 Mar 2000 18:07:57 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA10923 for ; Wed, 1 Mar 2000 18:07:56 -0500 Received: from bugbug (max01-33.suba.com [206.69.121.225]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA26420 for ; Wed, 1 Mar 2000 18:20:38 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Taking a break Date: Wed, 1 Mar 2000 18:19:39 -0600 Message-ID: <000201bf83dc$ffef9b80$e17945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000301145239.I2187@duskglow.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd like to chime in here. I think it IS essential that some sort of backup to points be tabulated. In fact I don't think it matters whether the points are right or wrong. Obviously we want to back up the (hopefully) helpful points, but it is extremely useful to know what backup there is for the points we don't like (for whatever reason), against which we can compare the backup for points we do favor. I am in awe of this whole proceeding. If it is successful it will become a web fable. But, the format of Posting is becoming too disorganized to sustain a disciplined penetration of the facts and construction of an overarching argument useful to lawyers. Beginning as a post forum was good, but now RESEARCH is required, IMO. I suspect Rob is not really discouraged, but rather feels that hitting the libraries is where the effort will be best served, and I agree with that (whether that's how Rob feels or not). I think voting on ideas are not the answer as that will lead to more argumentation without substantiation, eventually. I suggest, humbly, the following: -we all take a break for, say, a week. -we use this break for researching. Also for going over the posts made so far and NOT AS A GROUP BUT EACH INDIVIDUALLY coming up with a list of "most important points (both for and against us)". -we come up with a topic list and divide up the group to find what we feel needs finding for each topic. Rob, if you're still there, we could really use your help on making this list. -we break and beat the crap out of every library we can find. Or at least the nearest one. -after about a week, we could start up a slower, more concentrated posting session. This kind of effort needs to be coordinated. I don't think it can be done through posts. My suggestion is that we use a website to stash findings and references for everyone to read and take notes on if necessary. I have a new site which I am willing to use for this. I am also willing to be a sort of liason for everyone if they want, which I guess would be necessary if we use my site. Just so everyone knows, I ain't too great at HTML, and probably could use help designing the site, assuming anything slightly complicated becomes necessary. I'm totally serious about all of this and I strongly believe that a research break is what's needed. Believe me, we'll all come back fresher and clearer for it. On that, I know whereof I speak. sparky@suba.com I'll be out for a couple hours. > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Russell > Miller > Sent: Wednesday, March 01, 2000 4:53 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Taking a break > > > On Wed, Mar 01, 2000 at 02:09:16PM -0800, Bryan Taylor wrote: > > > > --- Russell Miller wrote: > > > > I've seen quite a bit of legal citation here. I think you are wrong to > > assume that anybody here on this list will be impressed by 'wishful > > thinking' that can't be backed up by the US Code or a court case. I've > > certainly been quickly 'set right' when I've strayed off course. With > > the tools like http://www.jurisline.com, etc, available, we have no > > excuse not to hold ourselves to the same standards real lawyers are > > held, and everybody knows that. > > > No, I'm not assuming that. I just think it's a waste of time to use tools > (such as was proposed) that do not assist in making our arguments or > items of debate more ironclad. The person I was referring to suggested > putting pretty much anything down and just moderating it. That doesn't > foster debate. > > > What is important is that as our consensus materializes and evolves > > over time, that it converges to sound legal arguements supported by > > sound technical reasoning and appropriate legal citation. Any > > suggestion that helps us converge FASTER is good. > > > But not at the expense of accuracy or soundness of arguments. Faster is > not always better, *especially* in this case. We have to be careful that > in pursuit of efficiency we don't waste the time of the lawyers who have > been kind enough to give us the time of day. > > I was more railing against the method proposed. The rest of it was just > kinda building and I let off steam. Sorry. Seeing Ron being driven away > wasn't a very heartening experience. > > --Russell > > > > > __________________________________________________ > > Do You Yahoo!? > > Talk to your friends online with Yahoo! Messenger. > > http://im.yahoo.com > > -- > Russell miller - rmiller@duskglow.com - russell@know-where.com > ----------------------------------------------------------------------- > The following sites are my own and do not necessarily represent > the views of any of my clients. > http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 18:27:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18494 for dvd-discuss-outgoing; Wed, 1 Mar 2000 18:27:41 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA18491 for ; Wed, 1 Mar 2000 18:27:39 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id CAA17908 for ; Thu, 2 Mar 2000 02:40:24 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 02:40:23 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Jury trial In-Reply-To: <20000227230921.5524.qmail@web508.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Feb 2000, Bryan Taylor wrote: >It appears that the defendants have the right, under the 7th Amendment >to a jury trial if they so desire, by analogy with the case below. This >might be better than letting Kaplan decide things. Comments? A bad, bad idea. MPAA has all the dirt they need to win a jury trial on the three sites the dispute has arisen over. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 18:51:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27857 for dvd-discuss-outgoing; Wed, 1 Mar 2000 18:51:37 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA27854 for ; Wed, 1 Mar 2000 18:51:36 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id DAA18376 for ; Thu, 2 Mar 2000 03:04:21 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 03:04:20 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Summary of points: 1201(a)(2),(b); 1201(a)(1); etc. In-Reply-To: <20000228163734.C23265@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Feb 2000 greslin@linuxpower.org wrote: >Perhaps I'm just dim, but I don't see the practical difference between a >"right" and a "defense" (i.e., protection from prosecution), and I'm not >convinced that the courts do either. A right can compete equally with another right whereas a defense always loses to an explicitly stated right. In this case, fair use is not a right so if there is something in 1201 which explicitly prohibits fair use, you cannot in any simple manner bring the fair use aspects into the argument. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 19:07:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04123 for dvd-discuss-outgoing; Wed, 1 Mar 2000 19:07:40 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA04119 for ; Wed, 1 Mar 2000 19:07:39 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 2E19676F4; Wed, 1 Mar 2000 19:20:51 -0600 (CST) From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Date: Wed, 1 Mar 2000 15:40:04 -0600 X-Mailer: KMail [version 1.0.28] Content-Type: text/plain References: <20000301212240.14673.qmail@web507.mail.yahoo.com> In-Reply-To: <20000301212240.14673.qmail@web507.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00030119205100.27504@arh1176.urh.uiuc.edu> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 01 Mar 2000, Bryan Taylor wrote: > --- Steven Barker wrote: > > > I think you are misunderstanding how the reverse engineering > > exemption could apply to DeCSS. The case is not about the creation > of > > DeCSS, it is about it's distribution. [...] > > As you actually point out, (f)(3) grants distribution only for tools > that meet the (f)(2) exception, so even though the creation of DeCSS > occurred extra-territorially, you do have to show DeCSS meets the > (f)(2) criterion. Yes I agree. That was my point really. I think the issue of qualifying for (f)(2) is not the reverse engineering that went into creating DeCSS, but the hack that DeCSS does on CSS scrambled DVDs. > > [...] What is relevant is that DeCSS's breaking of the > > scrambling of the .vob files allows them to interact with other DVD > > playing software. This might come under 1201(f)(2). > This is the 2nd model I propose, but to qualify you also have to > conclude that the .vob files are the 'other programs' refered to, so > you can pass the 'if such means are necessary to achieve such > interoperability' test. Fortunately and somewhat surprisingly, the .vob > files include code for paging through the parts of the movie. > > > If we can convince the judge that DeCSS is a means as described here, > > then it should be easy to get the distribution of DeCSS exempted > under > > 1201(f)(3). I suppose it is possible that the current defendants in > New > > York will be disqualified because of the way they advertised DeCSS on > > their pages (based only on faint memory of who they are). [...] > > Yes. I think (f)(3)'s 'solely' clause may blow it for www.dvd-copy.com, > since they are overtly advocating piracy. I don't know about 2600.com . I would hope that, since they do not advocate the use of DeCSS for piracy (at least, not on the page cited in the complaint) they would not have the same problems as the others. Being self proclaimed "Hackers" probably doesn't help them in Judges eyes. > On the other hand, one could argue that the right to 'make them > available to others' belongs under 17 USC 106 to the DeCSS copyright > holder, MoRE and so it's their intent that's in question. Another > arguement is it was MoRE that qualified for (f)(2), so again it's their > intent that is the issue. Johansen's GPL'ing of it and contributions to > LiViD and repeated statements about Linux in my mind would qualify for > the 'solely' clause. Well, even if MoRE were consideder to be permitted to distribute DeCSS, I doubt that it would be legal for other people to distribute DeCSS if they themselves didn't qualify. Linking to Johansen's page would be an entirely different matter, but thats not even touched on in the case. I wonder if 2600 can get out of their part because their page with the download of DeCSS was mirror of another site (which had been shut down under pressure from the MPAA). > > Well, I think both of the interpretations you presented are wrong. > > DeCSS does not interoperate with anything, but it is a means for > LiViD > > (for example) to interact with the .vob files on DVDs. > > What? Are you saying DeCSS does not 'exchange information' with the > .vob file? Isn't that just about ALL it does - read the .vob? For the > authoring-to-DeCSS model, are you saying that the .vob file is not > 'information' or not 'exchanged' between DeCSS and the authoring > program? Well, I may just be playing the devil's advocate, but I don't think reading the .vob file counts. DeCSS treats the .vob file as data, not as a program (even if the Judge accepts that it is one). DeCSS simply reads the encrypted .vob and decrypts it using the Xing key (or a cracked one) then writes it to disk. It doesn't interoperate at all, with anything. If you view it the other way, where DeCSS is mearly an intermediary betweeen the DVD Video and a mpeg player. It circumvents the encryption in order to allow those two to interoperate by exchanging information (namely the mpeg video and sound streams). > > We might be able to say that even if DVD > > video is not a "program" as defined by the judge, [...] > > Well actually 'computer program' is defined by 17 USC 101 so broadly > that even something as basic as the interface in the movie will > qualify. Maybe even html would qualify. A danger is that the MPAA's lawers will argue to seperate (at least in the Judge's mind) the program contents and the mpeg movie data. We need to convince him that they are both in the same file. Speaking of this, who knows what the other files are in the video_ts directory of a DVD. For most of the .vob files there is a .ifo and a .bup file. What do they do? > > the definition of "interoperability" given in paragraph (f)(4) allows > > circumvention if it is for the purpose of allowing one program > (LiViD) to > > use the information (DVD video) it gets from another program (DVD > > drive controlling software, linux (or windows I suppose) > > kernel modules even). > > I didn't refer to LiViD in the interoperability models, because, though > DeCSS was created as an intermediate development step in the ongoing > effort to create LiViD, it isn't actually part of the LiViD programs, > and it runs solely on windows. It was, however 'necessary' in the > development effort, because no mpeg2 players were available yet under > linux when it DeCSS was created and so windows was used to allow the > decryption to be tested. The reason DeCSS was originally made for windows was that at the time Linux could not understand the ISO filesystem that is used on DVDs, and so could not read off of them. That is why it was necessary to write it for windows. Also, the files created by DeCSS when it rips a DVD can be played in LiViD (I assume, as neither is working right on my system). Other mpeg players exist as well, for linux and windows (though you can't justify using DeCSS for the one in windows instead of a licensed player). > I guess you could define the 'independantly created program' as (DeCSS > + mpeg player). This would certainly also work. I define the mpeg player or LiViD as the independantly created program, and either the program contents of the .vob, or the Kernel module for the driver that runs the DVD driver as the program that it interacts with. The data that they share is the mpeg video and the sound streams. DeCSS is not either of the programs. It is the means that circumvents the encryption so that the other two can understand the data they exchange. > One pitfall to avoid, though, is that the circumvention is only allowed > 'if such means are 'necessary' to get interoperability. The drive > controller and the OS will interoperate just fine without requiring the > DVD be descrambled. Well, yes, you can read the scrambled tracks on the DVD, but the information your drive controler sends to other programs cannot be used without descrambling first. That is what DeCSS is there for. It takes the information from the disk controller and outputs it to a file that other programs can read. > That's why I refered back to the authoring program. The authoring tool > and the player can't exchange information at all unless there is a > decryption step, thus making DeCSS 'necessary'. In fact, DVDMotion > specifically requires a player to work and lists XingDVD as compatible. > This clinches the arguement. I hope your argument really is that strong. I'm going after it pretty hard, mostly to clear up some possible misconceptions. > I think about 1201(f) in terms of this general picture: > (Writer Program) ===> Data File ===> (Reader Program) the way I see it is more like this: (isofs kernel module) ==encrypted .vob==> (DeCSS) ==unencrypted .vob==> (LiViD) or alternately: (DVD Video program contents) ==encrypted mpeg video==> (DeCSS) ==mpeg==> (LiViD) Of course, since DeCSS runs under windows, there is an extra step where the unencrypted .vob file (containing the mpeg data) is saved to a file. > The law says you can reverse engineer and replace either the reader or > the writer with your own program, even if this would violate (a)(2) or > (b)(1), but in so doing you don't obtain a copyright licence to any > data files. The law is not specific about this. Past cases seem to back this somewhat, but I do not think that (f) is intended to only apply to the reading and writing programs. The data formats in between should also be fair game. We just need to find more past cases to back us up. -- Steven Barker scbarker@uiuc.edu Paranoid schizophrenics outnumber their enemies at least two to one. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 19:12:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08203 for dvd-discuss-outgoing; Wed, 1 Mar 2000 19:12:51 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA08199 for ; Wed, 1 Mar 2000 19:12:50 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id DAA18904 for ; Thu, 2 Mar 2000 03:25:35 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 03:25:34 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment Limits To Copyright In-Reply-To: <20000228221146.T23265@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Feb 2000 greslin@linuxpower.org wrote: >What ideas, exactly, does DeCSS communicate?? A way to break a cryptosystem, given in the form commonly deemed the minimum necessary when the crypto is claimed to be 'easily' breakable: a program which illustrates precisely how it is done. Programs are computer scientists' and nerds' way of saying things accurately, just as first order predicate logic is mathematicians'. The plus side is they can be actually compiled into working programs to do something. Distributing executables of DeCSS could perhaps be seen as a public service or proof of concept type of thing: not everybody has a compiler handy and there is a very serious message being conveyed when a small, easily used program is distributed with the implication it can break something as closely guarded as CSS. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 20:51:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18240 for dvd-discuss-outgoing; Wed, 1 Mar 2000 20:51:51 -0500 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA18237 for ; Wed, 1 Mar 2000 20:51:50 -0500 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA29841 for ; Wed, 1 Mar 2000 19:03:02 -0800 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA11053; Wed, 1 Mar 2000 18:27:06 -0800 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Date: 1 Mar 2000 18:26:00 -0800 Organization: A poorly-installed InterNetNews site Lines: 37 Distribution: isaac Message-ID: <89kjfo$apc$1@blowfish.isaac.cs.berkeley.edu> References: <20000301191444.7375.qmail@web508.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000301191444.7375.qmail@web508.mail.yahoo.com>, Bryan Taylor wrote: > I think one sentence in particular is highly responsible for the > misunderstanding. It's the one at the end of the section. Taken out of > context it can seem very damning. The sentence reads, in relevant part: > > " ... the Committee emphasizes that nothing in those subsections can be > read to authorize the circumvention of any technological protection > measure that controls access to any work other than a computer program, > ..." > > Out of context, this can easily be mis-interpreted, because the phrase > 'other than a computer program' might seem to modify 'work'. By reading > the previous paragraphs, and the text of (f)(2), you realize that > 'other than a computer program' actually modifies 'measure'. Could you explain how you came to this conclusion? It looks unnatural to me, on first glance. And if I look at it in context, the preceeding sentence doesn't seem to lend much support to your suggested interpretation. Here's the quote: This provision applies to computer programs as such, regardless of their medium of fixation and not to works generally, such as music or audiovisual works, which may be fixed and distributed in digital form. Accordingly, since the goal of interoperability is the touchstone of the exceptions contained in subsections 1201(g) through (j), nothing in those subsections can be read to authorize the circumvention of any technological protection measure that controls access to any work other than a computer program, or the trafficking in products or services for that purpose. Note the earlier sentence: "this provision applies to computer programs [...] and not to works generally, such as music or audiovisual works [...]". The earlier sentence seems to suggest that "other than a computer program" modifies "work", not "measure". How do you reconcile your interpretation with the earlier sentence? From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 21:35:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA32175 for dvd-discuss-outgoing; Wed, 1 Mar 2000 21:35:04 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA32171 for ; Wed, 1 Mar 2000 21:35:03 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id UAA26218 for ; Wed, 1 Mar 2000 20:50:03 -0600 Date: Wed, 1 Mar 2000 20:50:03 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Jury trial In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > A bad, bad idea. MPAA has all the dirt they need to win a jury trial on the > three sites the dispute has arisen over. Also keep in mind that the judge who has shown a stron bias against the defendants will be the one to set the ground rules for the jury. So, it probably won't help a whole heck of a lot. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 22:20:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10442 for dvd-discuss-outgoing; Wed, 1 Mar 2000 22:20:33 -0500 Received: from penguin.filetron.com (qmailr@[206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA10439 for ; Wed, 1 Mar 2000 22:20:32 -0500 Received: (qmail 26955 invoked from network); 2 Mar 2000 04:28:58 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 2 Mar 2000 04:28:58 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA16928; Wed, 1 Mar 2000 20:33:29 -0800 Date: Wed, 1 Mar 2000 20:33:29 -0800 Message-Id: <200003020433.UAA16928@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Research tips and tools? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Can we each get a tar.gz(me) or zip of the mailing list? Using the the web interface is well not very useful. Perhaps set up a list for research advice. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 22:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16465 for dvd-discuss-outgoing; Wed, 1 Mar 2000 22:39:56 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA16462 for ; Wed, 1 Mar 2000 22:39:51 -0500 Received: (qmail 4189 invoked by uid 502); 2 Mar 2000 04:57:01 -0000 Date: Wed, 1 Mar 2000 23:57:01 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000301235701.P23265@linuxpower.org> References: <200002292328.PAA06752@ns1.filetron.com> <38BC5B8C.E559101B@cdpage.com> <38BC75A9.F5C27BB7@cdpage.com> <20000301011230.K23265@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000301011230.K23265@linuxpower.org>; from greslin@linuxpower.org on Wed, Mar 01, 2000 at 01:12:30AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 01, 2000 at 01:12:30AM -0500, greslin@linuxpower.org wrote: > > Guys - > > I'm taking a break from this. It may be a week or two before I post again, > and I don't know when or if the next draft of the FAQ will be up. > > The long and short of it is, we're not handling the legal end of this with > the nuances and respect that we should be doing. This list has unfortunately > been laced with pro-DeCSS, Slashdot-style debate, and to be honest most of > us don't have the background to deal with these questions properly. In the > process of dealing offline with both attorneys and techies, this problem has > grown more and more apparent to me. > > If some bonafide attorneys want to actually participate in this forum, then > wonderful. Otherwise, we're not accomplishing anything. > > See you in a week or two. > I sent out the above message early this morning. It's been a bad week. I had basically reached the point where I had pretty much completely burned out on this. I took a day off, drove halfway across the state (into Orlando from Tampa) and spent the day with friends and family and just relaxed. Things are cool now. I just wanted to thank everyone who sent me offline mail. A *lot* of people did. It really surprised me - I really appreciate it. Anyway, I'm still in. The new cut of the FAQ will happen on Monday, and I still think I'm going to take a few days off to get some perspective. But I'm not going anywhere. :) Thanks, Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 23:13:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA23616 for dvd-discuss-outgoing; Wed, 1 Mar 2000 23:13:30 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA23565 for ; Wed, 1 Mar 2000 23:13:23 -0500 Received: (qmail 4259 invoked by uid 502); 2 Mar 2000 05:30:33 -0000 Date: Thu, 2 Mar 2000 00:30:33 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302003033.S23265@linuxpower.org> References: <20000301194205.28206.qmail@web507.mail.yahoo.com> <38BD7597.CAA31497@bigbrother.net> <20000301122305.F2187@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000301122305.F2187@duskglow.com>; from Russell Miller on Wed, Mar 01, 2000 at 12:23:05PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 01, 2000 at 12:23:05PM -0800, Russell Miller wrote: > But that means nothing. > > What Ron has been trying to get across is that what we consider to be fact, > EVEN BY POPULAR CONSENSUS, is essentially worthless as far as the law is > concerned. It doesn't matter how much we moderate, till we're blue in the > face, it won't make fallacies correct and it won't make what is correct > fallacies. > > Just because we have the audience of lawyers in this case does not make us > special and it does not give our view of the facts weight. If we cannot > *back up our facts*, using references, legal citations, trade publications, > whatever, our input is worthless past the ramblings of a bunch of techies with > wishful thinking. > > If we do something like this it not only will be useless, it will end up > *wasting the time* of the very lawyers we are trying to assist. > > I've been watching this list for quite a while. There's a bunch of good > things coming off of it, but there is just as much, pardon my french, BS. > Finding some way to skim the cream off the top is a good idea, but it must > be through a rigorous program of research, factfinding, and debate. Not > just posting the fact and moderating it up or down. That would be worse > than useless and a waste of eveyone's time. If you want to do it by debate, > that's one thing, debate the hell out of it and post a faq. Input from a > few lawyers wouldn't hurt, either. (hinthint). Maybe a slash-like message > board with a DIFFERENT kind of moderation, one that's more attuned to what > we're trying to accomplish. Maybe with a (maybe anonymous) lawyer working > behind the scenes to rate the comments and decide when debate has become > fruitless. > > I'm sorry if this is a little strong, I've been watching this list for quite > a while, and we have some good minds here, but we cannot let our wishful > thinking obscure the facts and the process of factfinding, research, and > most importantly, *working within reality*. The reality is that we're facing > a bad law and some overly militant (insert expletive here) who want to litigate > our freedom of expression out of existence. This isn't helping. > > We're trying to "hack" the legal system here. We're going to have to get used > to the fact that the rules are different. You can't compile the US code. > > --Russell I'm just reposting the above. I'm doing so because I agree with every word. Something else important to realize is that an attorney has certain liabilities in posting here that rank-and-file techies don't have. Let's face it; in a lot of cases here what we're talking about is overturning an act of Congress. That's not a little thing. While any of us techies can pretty much advocate that, for an attorney to be participating publicly can create professional problems with clients. I think that's why most of the "real attorney" traffic has been offline. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 23:27:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25896 for dvd-discuss-outgoing; Wed, 1 Mar 2000 23:27:52 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25893 for ; Wed, 1 Mar 2000 23:27:51 -0500 Received: from [38.32.10.232] (helo=ip232.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12QOLk-0003GA-00; Thu, 2 Mar 2000 00:40:36 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Date: Thu, 02 Mar 2000 05:39:42 GMT Message-ID: <38befc60.3932877@mail.tiac.net> References: <38c38951.26301622@mail.tiac.net> <38BDA8D7.67C4E795@cdpage.com> In-Reply-To: <38BDA8D7.67C4E795@cdpage.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id XAA25894 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 01 Mar 2000 16:33:43 -0700, Dana Parker wrote: >sorry Ron. Bob dl'd it and tried it. It works under Windows and has been >tested quite thoroughly (for research purposes of course) here at CD >Labs. ;-) Hmmm. I'll try a more recent disc. (Dr Caligari files are dated 9-15-97. ) BTW, I can't copy vobs from this disc either. (what does _that_ mean?) Other files copy fine--just no vobs. Beginning to think DVD is a virus. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 23:36:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27271 for dvd-discuss-outgoing; Wed, 1 Mar 2000 23:36:36 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA27268 for ; Wed, 1 Mar 2000 23:36:35 -0500 Received: (qmail 15468 invoked by uid 60001); 2 Mar 2000 05:49:14 -0000 Message-ID: <20000302054914.15467.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Wed, 01 Mar 2000 21:49:14 PST Date: Wed, 1 Mar 2000 21:49:14 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steven Barker wrote: > Well, I may just be playing the devil's advocate, but I don't think > reading the .vob file counts. DeCSS treats the .vob file as data, not > as a program (even if the Judge accepts that it is one). DeCSS simply > reads the encrypted .vob and decrypts it using the Xing key (or a > cracked one) then writes it to disk. [...] I guess you are right. This is a good point. Even if the .vob files contain instructions, they aren't executed _by_ DeCSS. So for the second model I reference, you have to define it as the player interoperating with the .vob with DeCSS translating. I guess you have a point that DeCSS doesn't actually have to be one of the interoperating programs to qualify for the exception. > The reason DeCSS was originally made for windows was that at the time > Linux could not understand the ISO filesystem that is used on DVDs, > and so could not read off of them. That is why it was necessary to > write it for windows. Is the reason I cited (no mpeg2 player at that time) also correct, or do I have my facts wrong? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 1 23:40:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27790 for dvd-discuss-outgoing; Wed, 1 Mar 2000 23:40:09 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA27787 for ; Wed, 1 Mar 2000 23:40:08 -0500 Received: (qmail 6702 invoked by uid 60001); 2 Mar 2000 05:52:54 -0000 Message-ID: <20000302055254.6701.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Wed, 01 Mar 2000 21:52:54 PST Date: Wed, 1 Mar 2000 21:52:54 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Jury trial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Sampo A Syreeni wrote: > >It appears that the defendants have the right, under the 7th > >Amendment to a jury trial if they so desire, by analogy with the > >case below. This might be better than letting Kaplan decide things. > >Comments? > > A bad, bad idea. MPAA has all the dirt they need to win a jury trial > on the three sites the dispute has arisen over. Well, I've always thought dvd-copy.com was screwed, but what 'dirt' does the MPAA have on 2600.com. It has to be admissible dirt, too, by the way. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 05:41:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA28675 for dvd-discuss-outgoing; Thu, 2 Mar 2000 05:41:26 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA28672 for ; Thu, 2 Mar 2000 05:41:24 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id NAA18707 for ; Thu, 2 Mar 2000 13:54:09 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 2 Mar 2000 13:54:09 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Jury trial In-Reply-To: <20000302055254.6701.qmail@web503.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 1 Mar 2000, Bryan Taylor wrote: >> A bad, bad idea. MPAA has all the dirt they need to win a jury trial >> on the three sites the dispute has arisen over. > >Well, I've always thought dvd-copy.com was screwed, but what 'dirt' >does the MPAA have on 2600.com. It has to be admissible dirt, too, by >the way. Considering that in order to win according to USC1201 you need to demonstrate some 'good will'. I.e. the section is pretty much laced with concepts like good faith research and the primary purpose of a program. 2600.com archives pictures of hacked sites and generally is the voice of a subculture not known for their good faith encryption research. The apparent, sometimes even romantic glorification of hacking and phreaking is something law abiding citizens usually have trouble understanding - thanks to the media coverage of hacking incidents in the 90ies. This stuff can be slipped in through the purpose/good-faith language in section 1201 and would pretty much poison a jury. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 07:35:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA22231 for dvd-discuss-outgoing; Thu, 2 Mar 2000 07:35:56 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA22228 for ; Thu, 2 Mar 2000 07:35:55 -0500 Received: from bugbug (max01-56.suba.com [206.69.121.248]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id HAA13139 for ; Thu, 2 Mar 2000 07:48:41 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Taking a break Date: Thu, 2 Mar 2000 07:47:40 -0600 Message-ID: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000302003033.S23265@linuxpower.org> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin said: > > Something else important to realize is that an attorney has > certain liabilities > in posting here that rank-and-file techies don't have. Let's > face it; in a lot > of cases here what we're talking about is overturning an act of > Congress. That's > not a little thing. While any of us techies can pretty much > advocate that, for > an attorney to be participating publicly can create professional > problems with > clients. I think that's why most of the "real attorney" traffic > has been offline. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > Whether we all take a break for researching or not, the lawyers who have been willing to get involved as much as to read the FAQ and comment or even criticize it, or to read the posts and comment or criticize that, all OFFLINE, are in fact not helping. They are cursing the darkness rather than lighting a candle. More to the point, they are not helping if their communications are not distilled to the rest of the group. We all need to be - okay here I go - "on the same page." I'm not saying the lawyers should post. If they cannot post or come to a comparitive level of involvement, for whatever reason, then let's provide them with a means to give us some direction, hints, anything. The website idea comes to mind again. It's EXTREMELY IMPORTANT that they understand that lawyerly direction is needed somewhere, even if it's only to say "go research court cases that didn't start from copyright infringement but applied fair use doctrine" or some such. Persons who have had contact with lawyers offline NEED to distill the essence of the communication to the rest of the group. Whether the input is good or bad. Bad input can be just as productive in correcting an unproductive thread. sparky From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 07:45:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA23937 for dvd-discuss-outgoing; Thu, 2 Mar 2000 07:45:08 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA23934 for ; Thu, 2 Mar 2000 07:45:07 -0500 Received: (qmail 5003 invoked by uid 502); 2 Mar 2000 14:02:20 -0000 Date: Thu, 2 Mar 2000 09:02:20 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302090220.V23265@linuxpower.org> References: <20000301172254.14661.qmail@web506.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Jeremy A Erwin on Wed, Mar 01, 2000 at 02:02:19PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 01, 2000 at 02:02:19PM -0500, Jeremy A Erwin wrote: > On Wed, 1 Mar 2000, Bryan Taylor wrote: > > > > > I think this list is supposed to be a place where you can "try out" > > ideas and advocate a position. For every 10 ideas posted, 9 get shot > > down under cross examination, but the one that stands is a gem. More > > importantly, the process itself is extremely educational. > > > > The critical next step, though, is filtering out the good ideas. This > > is why I think it's critical that the FAQ keep going. I think to > > address the problem Rob has raised, we need to think of other ways to > > distill the wisdom out of the list. Anybody have ideas on other ways to > > do this? > > What I think would be nice would be a list of "red herrings." For > instance, I became involved in bit of a "flame war" over whether DVDs > decayed over time, because I believed that it somehow fed into the right > to backup software ("fair use.") Such discussions naturally take up a lot > of bandwidth. > > As it stands now, there are hundreds of messages, many of which go > nowhere, many of which do. I'd like to see a summary of discussions-e.g. > antitrust against MPAA, DVDCCA > lifespan of DVD and backups > Program vs non-Program > Application of Reverse-Engineering to Content Creation vs Content Display > > along with a brief explanation of why the argument is worth developing, > off-topic, or based on a misunderstanding of law. Actually, what I think I may do is create a new section of the FAQ for the arguments, separate from the technical and legal questions. We can keep the legal section for questions like "What rights are granted to a copyright owner?" - the college civic questions - and then address things like "Is DeCSS covered under the RE exemptions?" in the Arguments section. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 09:41:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21440 for dvd-discuss-outgoing; Thu, 2 Mar 2000 09:41:37 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA21437 for ; Thu, 2 Mar 2000 09:41:37 -0500 Received: from 207-172-50-77.s331.tnt7.lnhva.md.dialup.rcn.com ([207.172.50.77]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12QXvQ-0001Dz-00 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 10:54:06 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000224003411.C28173@nacs.net> References: <20000224003411.C28173@nacs.net> Date: Thu, 2 Mar 2000 10:48:29 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] DVD Media *is* program. Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >2) Further, the command set appears as complete as, if not more so, than > the CPU of the first computer I ever owned (which was an Atari 800, which > had the 6802/6811 processor - the same processor as the Commodore 64, which > was more common, even the same processor as the Commodore 64's floopy drive ;). The Commodore 64 had a MOS 6510 processor. I belive the Atari used a processor in the same series (6502?). The 650x series was far cheaper than the Motorola 6800 chip. " Unlike the 8080 and its kind, the 6502 (and 6800 had very few registers. It was an 8 bit processor, with 16 bit address bus. Inside was one 8 bit data register, two 8 bit index registers, and an 8 bit stack pointer (stack was preset from address 256 ($100 hex) to 511 ($1FF)). It used these index and stack registers effectively, with more addressing modes, including a fast zero-page mode that accessed memory addresses from address 0 to 255 ($FF) with an 8-bit address that speeded operations (it didn't have to fetch a second byte for the address). " John Bayko, Great Microprocessors of the Past and Present http://www3.sk.sympatico.ca/jbayko/cpu.html Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 11:22:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09987 for dvd-discuss-outgoing; Thu, 2 Mar 2000 11:22:21 -0500 Received: from penguin.filetron.com (qmailr@[206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA09957 for ; Thu, 2 Mar 2000 11:22:18 -0500 Received: (qmail 27926 invoked from network); 2 Mar 2000 17:30:44 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 2 Mar 2000 17:30:44 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id JAA25193; Thu, 2 Mar 2000 09:35:13 -0800 Date: Thu, 2 Mar 2000 09:35:13 -0800 Message-Id: <200003021735.JAA25193@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Research tips and tools? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu rongus@tiac.net (Ron Gustavson) wrote: >Rares, > >>Can we each get a tar.gz(me) or zip of the mailing list? Using the the = >web interface is well not very useful. >Is a zipped archive ordered by thread OK? Ordered by thread is good. I can go in and make links between similar points from separate threads. In any case, I'm going to be off the list for a while too. Only because I'm planning a public backdoor attack on all these fools one they'll never see coming. Hint: Educational mega site :) Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 11:27:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11434 for dvd-discuss-outgoing; Thu, 2 Mar 2000 11:27:48 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA11398 for ; Thu, 2 Mar 2000 11:27:43 -0500 Received: (qmail 5864 invoked by uid 60001); 2 Mar 2000 17:34:54 -0000 Message-ID: <20000302173454.5863.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Thu, 02 Mar 2000 09:34:54 PST Date: Thu, 2 Mar 2000 09:34:54 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "David A. Wagner" wrote: > > " ... the Committee emphasizes that nothing in those subsections > > can be read to authorize the circumvention of any technological > > protection measure that controls access to any work other than a > > computer program, ..." > > > > Out of context, this can easily be mis-interpreted, because the > > phrase 'other than a computer program' might seem to modify 'work'. > > By reading the previous paragraphs, and the text of (f)(2), you realize > > that 'other than a computer program' actually modifies 'measure'. > > Could you explain how you came to this conclusion? > It looks unnatural to me, on first glance. Sure. The strongest case for 'measure' interpretation is the text of (f)(2), which says "... a person may develop and employ technological means to circumvent a technological measure ... for the purpose of enabling interoperability of an independently created computer program with other programs". There simply is no language restricting the works protected, but it is clear that the context of the reverse engineering is solely that of computer programs exchanging information. This supports the 'measure' interpretation and not the 'works' interpretation. In the House Report, preceding the quote above, are many references to "the computer program which is the subject of the analysis". The point of the section is that it must be a computer program that is reverse engineered and analyzed. For example, "the acts must be limited to those elements of the program which must be analyzed to achieve interoperability of an independently created program with other programs." Note the distiction between the analyzed program, the independently created program, and the other programs. The point is you replace a program with another and preserve interoperation. > Note the earlier sentence: "this provision applies to computer > programs [...] and not to works generally, such as music or audiovisual > works [...]". The earlier sentence seems to suggest that "other than a > computer program" modifies "work", not "measure". How do you > reconcile your interpretation with the earlier sentence? This is saying that you may reverse engineer a program, but you may not reverse engineer 'works generally'. Suppose programs A and B exchange data files X, Y, Z, which may be music or movies or whatever. Read the quote as : The reverse engineering provisions apply to computer programs A and B and not to works such as X, Y, Z. In other words, you can replace one computer program with another, but by doing so you don't gain any licences to works - you will still violate (a)(1) if you use reverse engineered tools to access unlicenced works. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 11:38:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15285 for dvd-discuss-outgoing; Thu, 2 Mar 2000 11:38:25 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA15282 for ; Thu, 2 Mar 2000 11:38:24 -0500 Received: (qmail 5353 invoked by uid 502); 2 Mar 2000 17:55:28 -0000 Date: Thu, 2 Mar 2000 12:55:28 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302125528.A5222@linuxpower.org> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain>; from sparky on Thu, Mar 02, 2000 at 07:47:40AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 07:47:40AM -0600, sparky wrote: > > Persons who have had contact with lawyers offline NEED to distill the > essence of the communication to the rest of the group. Whether the input is > good or bad. Bad input can be just as productive in correcting an > unproductive thread. To a degree I agree with you. One of the things that pushed me to a breaking point this week was nonsense being spewed in the list, and then having attorneys offline criticizing the FAQ for what was appearing in the list. When I ask for the posts to go public, I get reluctance and hesitation; there was criticism but no interest in getting involved in the fray, so there was no possibility of improvement on the list. The best we could hope for is to end up as a Slashdot forum, which I for one desperately want to avoid. I think we need to realize that the online "hacker" (for lack of a better term) culture is a very different one from the culture these attorneys are coming from. We don't think twice about forty new list messages being posted in eight hours, and most of them being absolute garbage. But to the attorneys who have been sitting on the sidelines, what they're seeing is a chaotic mess where nothing is being accomplished. That's a valid viewpoint. It may be a good idea to appoint certain trusted individuals as go-betweens for attorneys who don't want their opinions scrutinized as "advice" in public. I've already begun to make a contact or two, and an assurance that the communication lines stay open, so I can relay questions and answers. This way we're not endangering the professional standing of anyone over what amounts to a culture clash. The only issue then is trust; it amounts to sort of a key escrow system. Wendy, any thoughts? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 11:43:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16877 for dvd-discuss-outgoing; Thu, 2 Mar 2000 11:43:40 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA16874 for ; Thu, 2 Mar 2000 11:43:39 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA13718 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 11:56:25 -0600 Date: Thu, 2 Mar 2000 11:56:25 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302115624.A13699@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 07:47:40AM -0600, sparky wrote: > > ...lawyerly direction is needed somewhere, even if it's only to say "go > research court cases that didn't start from copyright infringement but > applied fair use doctrine" or some such. > > Persons who have had contact with lawyers offline NEED to distill the > essence of the communication to the rest of the group. Whether the input is > good or bad. Bad input can be just as productive in correcting an > unproductive thread. My thoughts exactly! I've tried to look at a few things, but I'm shooting in the dark without guidance. Anyone feel free to comment offline as to the worthiness of the following research topics: - fair use applied to non-copyright cases (or other cases where it's not in the statute) - history of fair use before it was statutory - legislative history of statutory fair use circa 1976 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 11:47:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17958 for dvd-discuss-outgoing; Thu, 2 Mar 2000 11:47:39 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA17955 for ; Thu, 2 Mar 2000 11:47:37 -0500 Received: (qmail 24712 invoked by uid 60001); 2 Mar 2000 18:00:13 -0000 Message-ID: <20000302180013.24711.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Thu, 02 Mar 2000 10:00:13 PST Date: Thu, 2 Mar 2000 10:00:13 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Access to a portion of the Program To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Much of the arguement for denying the reverse engineering exception centers on language in (f)(1) that only says a person "may circumvent a technological measure that effectively controls access to a particular portion of that program". I wonder if we can argue that this is what DeCSS does. DVD playback involves two different keys. A tool like XingDVD has a player key that can be used to extract the title key from off of the DVD. The actual movie is encrypted with the title key and not the player key. For purposes of discussion, I claim that the title keys are part of the whole player program. Furthermore, the descrambling of the movie itself is then done with the licenced key, provided by the DVD itself, and is therefore not circumvention, but the preffered method of access. The only circumvention arguably done by DeCSS is of that portion of the playback program that protects the title key by requiring the player key. The 'work' protected is the DVD movie, and the title key is not part of this. Therefore the identification and analysis done by MoRE was targeted to "circumvent a technological measure that effectively controls access to a particular portion of [the playback] program". __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 14:24:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23292 for dvd-discuss-outgoing; Thu, 2 Mar 2000 14:24:29 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA23247 for ; Thu, 2 Mar 2000 14:24:21 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id MAA10642 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 12:45:58 -0800 Date: Thu, 2 Mar 2000 12:45:58 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302124558.E8922@duskglow.com> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000302125528.A5222@linuxpower.org>; from greslin@linuxpower.org on Thu, Mar 02, 2000 at 12:55:28PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 12:55:28PM -0500, greslin@linuxpower.org wrote: > > I think we need to realize that the online "hacker" (for lack of a better term) > culture is a very different one from the culture these attorneys are coming > from. We don't think twice about forty new list messages being posted in > eight hours, and most of them being absolute garbage. But to the attorneys > who have been sitting on the sidelines, what they're seeing is a chaotic mess > where nothing is being accomplished. That's a valid viewpoint. > This is what is causing this problem in the first place. We are no more understood by lawyers (in the general sense) than lawyers are by us. We do have a different way of doing things and have gathered quite a bit of social power because of the nature of what we do. I imagine this scares the "establishment", almost as much as rock-n-roll 50 years ago. (Damn that makes me feel old - and I'm only 24). The MPAA and Jack Valenti and their minions do not understand the forces that brought this whole situation to bear in the first place and they are doing everything they can to thwart it. This is a culture clash. They may ultimately fail but the price will be HUGE. As it is in most culture clashes. Yes it is a valid viewpoint but what they need to realize is that we are in our "hackish" way trying to help them. I'm sure that arising out of the cruft of our "garbage" is a few good arguments that they never would have even *thought* of. This isn't because they're stupid but because we just see things differently. Yes, a lot of what has been posted is complete garbage. But that's the nature of the beast here - this is classic open-source development. And we're trying to port it to a culture that's not necessarily receptive to it. We need to adapt - but if they want what we have to offer - they have to make some allowances too. They have to realize that most of us have never even *stepped* into a law school - I did in college but only cause that's where the vending machines were. Me, I was a music major. Now I'm a UNIX administrator. And I've never really hid my feelings about a lot of lawyers. We need them, but not for any real human reason, but because that's *how the system is structured*. Yes, I'm sure they could get along just fine without us. Whether they'd win or not is a matter of debate. Maybe they would, maybe they wouldn't. But I guarantee you we're helping their chances. I know I'm rambling here, I just see a dichotomy here that needs to be addressed if we're going to be of any help at all - otherwise we're just sitting here doing nothing but essentially gratifying ourselves (I cleaned that up) and having absolutely no bearing on the very thing we are trying to influence. The ball is not in our court here - it is in that of the lawyers', for better or for worse. All we can do is sit on the sidelines with a rulebook and offer suggestions on how to play. --Russell > -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 14:41:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29403 for dvd-discuss-outgoing; Thu, 2 Mar 2000 14:41:52 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA29209 for ; Thu, 2 Mar 2000 14:41:46 -0500 Received: from [38.32.10.215] (helo=ip215.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12Qcc8-000464-00; Thu, 2 Mar 2000 15:54:29 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Date: Thu, 02 Mar 2000 20:53:25 GMT Message-ID: <38c5d3ea.20749010@mail.tiac.net> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> In-Reply-To: <20000302125528.A5222@linuxpower.org> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA29400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 2 Mar 2000 12:55:28 -0500, Rob wrote: >It may be a good idea to appoint certain trusted individuals as go-betweens >for attorneys who don't want their opinions scrutinized as "advice" in >public. I've already begun to make a contact or two, and an assurance that >the communication lines stay open, so I can relay questions and answers. >This way we're not endangering the professional standing of anyone over >what amounts to a culture clash. The only issue then is trust; it amounts >to sort of a key escrow system. Perhaps we can also solicit some anonymous posts from lawyers/law students? Here's one option: http://www.anonymizer.com/3.0/services/email.cgi I think I have Ghost mail for Windows somewhere also. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 14:45:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29982 for dvd-discuss-outgoing; Thu, 2 Mar 2000 14:45:01 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA29979 for ; Thu, 2 Mar 2000 14:45:00 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id PAA08864 for ; Thu, 2 Mar 2000 15:57:48 -0500 (EST) Date: Thu, 2 Mar 2000 15:57:47 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] applicability of Feist v Rural Telephone Service Co. (111 S. Ct. 1282) Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm wondering what this case means to protection of film rights in the public domain. The operative wording appears to be "A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves" 111 S.Ct. 1290 To what extent could a DVD of a film in the public Domain be used as source material for one's own publication-- i.e. hooking up a Video Recorder of some kind, pressing play, and using that recording as a basis for your own publication? (The menus and historical commentary on the resulting DVD would be different.) It seems that the DVD creation process would qualify as an original method of compilation (program) that would not be subject to Feist. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 14:58:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01363 for dvd-discuss-outgoing; Thu, 2 Mar 2000 14:58:07 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01360 for ; Thu, 2 Mar 2000 14:58:07 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id F042C76F7; Thu, 2 Mar 2000 15:11:22 -0600 (CST) From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Date: Thu, 2 Mar 2000 15:00:40 -0600 X-Mailer: KMail [version 1.0.28] Content-Type: text/plain References: <20000302173454.5863.qmail@web502.mail.yahoo.com> In-Reply-To: <20000302173454.5863.qmail@web502.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00030215112200.00980@arh1176.urh.uiuc.edu> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 02 Mar 2000, Bryan Taylor wrote: > In the House Report, preceding the quote above, are many references to > "the computer program which is the subject of the analysis". The point > of the section is that it must be a computer program that is reverse > engineered and analyzed. For example, "the acts must be limited to > those > elements of the program which must be analyzed to achieve > interoperability of an independently created program with other > programs." Note the distiction between the analyzed program, the > independently created program, and the other programs. The point is you > replace a program with another and preserve interoperation. What program are you replacing though? The language you quote suggests that the replacement is of the "analyzed program" that is protected by encryption. Using DeCSS allows the replacement of one of the "other programs", namely the player. > > Note the earlier sentence: "this provision applies to computer > > programs [...] and not to works generally, such as music or > audiovisual > > works [...]". The earlier sentence seems to suggest that "other than > a > > computer program" modifies "work", not "measure". How do you > > reconcile your interpretation with the earlier sentence? > > This is saying that you may reverse engineer a program, but you may not > reverse engineer 'works generally'. Suppose programs A and B exchange > data files X, Y, Z, which may be music or movies or whatever. Read the > quote as : The reverse engineering provisions apply to computer > programs A and B and not to works such as X, Y, Z. In other words, you > can replace one computer program with another, but by doing so you > don't gain any licences to works - you will still violate (a)(1) if you > use reverse engineered tools to access unlicenced works. I wonder if our argument that DVD Video could be fought with an argument like this: "You might have the right to break CSS to get the program contents of the .vob, but to have that part sent you the mpeg portions of the .vob you must have a licensed player do the decryption." The issue here is when a file is part program, part data, can it be distinguished into parts like this would do? Are we safe making an argument that a .vob file is a program, when certainly most of the bits in it are part of video or sound streams, wrapped in the program part. -- Steven Barker scbarker@uiuc.edu We're all sorry for the other guy when he loses his job to a machine. But when it comes to your job -- that's different. And it always will be different. -- McCoy, "The Ultimate Computer", stardate 4729.4 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 15:05:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03731 for dvd-discuss-outgoing; Thu, 2 Mar 2000 15:05:59 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA03728 for ; Thu, 2 Mar 2000 15:05:58 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id NAA08043 for ; Thu, 2 Mar 2000 13:18:58 -0800 (PST) Message-ID: <38BEDA71.1ED7D7A0@cdpage.com> Date: Thu, 02 Mar 2000 14:17:37 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org wrote: > To a degree I agree with you. One of the things that pushed me to a breaking > point this week was nonsense being spewed in the list, and then having > attorneys offline criticizing the FAQ for what was appearing in the list. > When I ask for the posts to go public, I get reluctance and hesitation; there > was criticism but no interest in getting involved in the fray, so there was > no possibility of improvement on the list. The best we could hope for is > to end up as a Slashdot forum, which I for one desperately want to avoid. > > Give us a hint. What's garbage and what isn't? What's worth pursuing? Don't name names if you don't want to, I think we can agree that no one's feelings need be hurt. We're all here because we want to be helpful and it's hard to know what is helpful and what isn't. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 15:49:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17239 for dvd-discuss-outgoing; Thu, 2 Mar 2000 15:49:42 -0500 Received: from penguin.filetron.com (qmailr@[206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17235 for ; Thu, 2 Mar 2000 15:49:40 -0500 Received: (qmail 12265 invoked from network); 2 Mar 2000 21:58:10 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 2 Mar 2000 21:58:10 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA06467; Thu, 2 Mar 2000 14:02:39 -0800 Date: Thu, 2 Mar 2000 14:02:39 -0800 Message-Id: <200003022202.OAA06467@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The announce list needs to light up a little more like with tar.gz'd daily digests. Could be automated. Two obvious organizationns of information: Thread and date. One missing: Points made. This could be assigned to whomever wants to reorganize the posts according to what was argued. I need to figure this out. Rares greslin@linuxpower.org wrote: >On Thu, Mar 02, 2000 at 07:47:40AM -0600, sparky wrote: >> >> Persons who have had contact with lawyers offline NEED to distill the >> essence of the communication to the rest of the group. Whether the input is >> good or bad. Bad input can be just as productive in correcting an >> unproductive thread. > > >To a degree I agree with you. One of the things that pushed me to a breaking >point this week was nonsense being spewed in the list, and then having >attorneys offline criticizing the FAQ for what was appearing in the list. >When I ask for the posts to go public, I get reluctance and hesitation; there >was criticism but no interest in getting involved in the fray, so there was >no possibility of improvement on the list. The best we could hope for is >to end up as a Slashdot forum, which I for one desperately want to avoid. > >I think we need to realize that the online "hacker" (for lack of a better term) >culture is a very different one from the culture these attorneys are coming >from. We don't think twice about forty new list messages being posted in >eight hours, and most of them being absolute garbage. But to the attorneys >who have been sitting on the sidelines, what they're seeing is a chaotic mess >where nothing is being accomplished. That's a valid viewpoint. > >It may be a good idea to appoint certain trusted individuals as go-betweens >for attorneys who don't want their opinions scrutinized as "advice" in >public. I've already begun to make a contact or two, and an assurance that >the communication lines stay open, so I can relay questions and answers. >This way we're not endangering the professional standing of anyone over >what amounts to a culture clash. The only issue then is trust; it amounts >to sort of a key escrow system. > >Wendy, any thoughts? > >Rob Warren >greslin@linuxpower.org >www.iag.net/~aleris > > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 15:58:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20257 for dvd-discuss-outgoing; Thu, 2 Mar 2000 15:58:05 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20127 for ; Thu, 2 Mar 2000 15:58:03 -0500 Received: from travel-net.com (trj27.travel-net.com [207.176.160.27]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA12112 for ; Thu, 2 Mar 2000 17:10:52 -0500 Message-ID: <38BEE6E6.8C7053AA@travel-net.com> Date: Thu, 02 Mar 2000 17:10:46 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.7 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38c5d3ea.20749010@mail.tiac.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well Im not admitted to practice in any US jurisdiction, but I have been lurking on this list and any time someone came up with some legal point that I found *curious* I raised the issue. And I have been impressed with some of the research AND thinking listmembers have put together. As for getting off-record opinions from attorneys, remember what they are: opinions. Catch a judge on a bad day and that opinion may as well have not been written. Ron Gustavson wrote: > > On Thu, 2 Mar 2000 12:55:28 -0500, Rob wrote: > > >It may be a good idea to appoint certain trusted individuals as go-betweens > >for attorneys who don't want their opinions scrutinized as "advice" in > >public. I've already begun to make a contact or two, and an assurance that > >the communication lines stay open, so I can relay questions and answers. > >This way we're not endangering the professional standing of anyone over > >what amounts to a culture clash. The only issue then is trust; it amounts > >to sort of a key escrow system. > > Perhaps we can also solicit some anonymous posts > from lawyers/law students? > Here's one option: > http://www.anonymizer.com/3.0/services/email.cgi > > I think I have Ghost mail for Windows somewhere also. > > __________no-∞-do__________ -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 16:42:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02563 for dvd-discuss-outgoing; Thu, 2 Mar 2000 16:42:38 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA02560 for ; Thu, 2 Mar 2000 16:42:37 -0500 Received: (qmail 5898 invoked by uid 502); 2 Mar 2000 22:59:53 -0000 Date: Thu, 2 Mar 2000 17:59:53 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302175953.E5222@linuxpower.org> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38c5d3ea.20749010@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38c5d3ea.20749010@mail.tiac.net>; from Ron Gustavson on Thu, Mar 02, 2000 at 08:53:25PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 08:53:25PM +0000, Ron Gustavson wrote: > On Thu, 2 Mar 2000 12:55:28 -0500, Rob wrote: > > >It may be a good idea to appoint certain trusted individuals as go-betweens > >for attorneys who don't want their opinions scrutinized as "advice" in > >public. I've already begun to make a contact or two, and an assurance that > >the communication lines stay open, so I can relay questions and answers. > >This way we're not endangering the professional standing of anyone over > >what amounts to a culture clash. The only issue then is trust; it amounts > >to sort of a key escrow system. > > Perhaps we can also solicit some anonymous posts > from lawyers/law students? > Here's one option: > http://www.anonymizer.com/3.0/services/email.cgi > > I think I have Ghost mail for Windows somewhere also. It's a good idea but it only addresses half the problem. It doesn't touch the culture clash issue, which I think accounts for three-quarters of the problem. Here's what I think would work. We've got at least one law student among us. I've got a decent line of communication with at least one attorney, who has been giving me some real solid information for the last day or two once we got some misunderstandings cleared up. I'm sort of digesting everything he told me; it's some really good stuff, but I don't understand it all myself enough to put it into forum quite yet. I'll start talking about it all on Monday when I put out the next cut of the FAQ. I think what would be best is if we (ideally, I know) could give the law students the job of working offline with the attorneys. That would go a long way towards helping to bridge this culture gap between the geeks and the lawyers; the law students could act as ambassadors of sorts. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 16:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04667 for dvd-discuss-outgoing; Thu, 2 Mar 2000 16:55:44 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA04664 for ; Thu, 2 Mar 2000 16:55:43 -0500 Received: (qmail 5949 invoked by uid 502); 2 Mar 2000 23:12:59 -0000 Date: Thu, 2 Mar 2000 18:12:59 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302181259.F5222@linuxpower.org> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38BEDA71.1ED7D7A0@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38BEDA71.1ED7D7A0@cdpage.com>; from Dana Parker on Thu, Mar 02, 2000 at 02:17:37PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 02:17:37PM -0700, Dana Parker wrote: > greslin@linuxpower.org wrote: > > > To a degree I agree with you. One of the things that pushed me to a breaking > > point this week was nonsense being spewed in the list, and then having > > attorneys offline criticizing the FAQ for what was appearing in the list. > > When I ask for the posts to go public, I get reluctance and hesitation; there > > was criticism but no interest in getting involved in the fray, so there was > > no possibility of improvement on the list. The best we could hope for is > > to end up as a Slashdot forum, which I for one desperately want to avoid. > > > > > > Give us a hint. What's garbage and what isn't? What's worth pursuing? Don't name > names if you don't want to, I think we can agree that no one's feelings need be > hurt. We're all here because we want to be helpful and it's hard to know what is > helpful and what isn't. The offline fight I had this week had to do with the constitutional authority issue, Commerce vs. Copyright. It's a real issue, and an extremely complicated one; it's not as easy as simply saying that Congress exceeded it's authority. That's for the courts to decide, not us, and would have to happen at the Supreme Court level, if I understand it correctly. There are a number of focal points in this debate that are real points, but are much more subtle and complicated from a legal perspective than we think. The "what is a program?" issue for example; 17 USC 101 may not be the end-all definition. The constitutional authority issue is a big one. There are others, along with a possible line of attack that could be a killer if done just right. The attorney I was (and still am, thank God) working with was becoming frustrated with the same thing I was - the inclination on the part of certain few people here to decide first what they wanted to believe, and then trying to make the law fit that. I'm not naming names; I have no interest in turning this into a flamefest. Needless to say, this particular attorney had come to the conclusion that we were sort of "playing law" and not treating any of the issues with the depth of respect that they deserved. When I asked him for clarifications and a few simplifications concerning some FAQ questions, all hell broke loose. As I said elsewhere, once the two of us got our misunderstandings cleared up, I got a lot of good stuff from him. I'm trying to digest it right now; I'm reluctant to start talking yet because I'll probably get it wrong. When I put the new FAQ up on Monday, I'll describe what I was told. Rob Warren greslin@linuxpower.org www.iag.net/~aleris P.S. BTW, the attorney in question is no longer subscribed to this list, because the sheer volume of posts was too much for him. He didn't have time to keep up with it all. He's informed me, however, that he wants to help and will be more than happy to address any questions we send his way. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 17:24:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12261 for dvd-discuss-outgoing; Thu, 2 Mar 2000 17:24:02 -0500 Received: from dial115.roadrunner.com (dial115.cybermesa.com [209.12.75.115]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12258 for ; Thu, 2 Mar 2000 17:23:59 -0500 Received: (from paul@localhost) by dial115.roadrunner.com (8.8.7/8.8.7) id QAA09125 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 16:39:52 -0700 Date: Thu, 2 Mar 2000 16:39:51 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000302163951.D7744@localhost> References: <20000301212240.14673.qmail@web507.mail.yahoo.com> <00030119205100.27504@arh1176.urh.uiuc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00030119205100.27504@arh1176.urh.uiuc.edu>; from steve@arh1176.urh.uiuc.edu on Wed, Mar 01, 2000 at 03:40:04PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Just a refinement to the diagram below: On Wed, Mar 01, 2000 at 03:40:04PM -0600, Steven Barker wrote: > On Wed, 01 Mar 2000, Bryan Taylor wrote: [ ... ] > > That's why I refered back to the authoring program. The authoring tool > > and the player can't exchange information at all unless there is a > > decryption step, thus making DeCSS 'necessary'. In fact, DVDMotion > > specifically requires a player to work and lists XingDVD as compatible. > > This clinches the arguement. > > I hope your argument really is that strong. I'm going after it pretty hard, > mostly to clear up some possible misconceptions. > > > I think about 1201(f) in terms of this general picture: > > (Writer Program) ===> Data File ===> (Reader Program) > > the way I see it is more like this: > (isofs kernel module) ==encrypted .vob==> (DeCSS) ==unencrypted .vob==> (LiViD) > or alternately: > (DVD Video program contents) ==encrypted mpeg video==> (DeCSS) ==mpeg==> (LiViD) > > Of course, since DeCSS runs under windows, there is an extra step where the > unencrypted .vob file (containing the mpeg data) is saved to a file. One can make the on-disk/in-core distinction explicit: on-DVD, encrypted .vob ==> (isofs kernel module) ==> in-core, encrypted .vob ==> (DeCSS) ==> in-core, unencrypted .vob ==> (LiViD) or if you prefer: on-DVD, encrypted ==> (isofs) ==> in-core, encrypted ==> (DeCSS) ==> (xyz-fs) ==> on-disk, unencrypted xyz-fs Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 17:59:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21418 for dvd-discuss-outgoing; Thu, 2 Mar 2000 17:59:55 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21414 for ; Thu, 2 Mar 2000 17:59:54 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id QAA26150 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 16:11:00 -0800 Date: Thu, 2 Mar 2000 16:11:00 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000302161100.P13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000301212240.14673.qmail@web507.mail.yahoo.com> <00030119205100.27504@arh1176.urh.uiuc.edu> <20000302163951.D7744@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000302163951.D7744@localhost>; from fenimore@roadrunner.com on Thu, Mar 02, 2000 at 04:39:51PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Shouldn't that be "UDF" instead of "ISO"? I thought that most DVDs do not use ISO filesystems at all -- with the probably exception of things like the SuSE Linux DVD. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 18:41:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01511 for dvd-discuss-outgoing; Thu, 2 Mar 2000 18:41:01 -0500 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01508 for ; Thu, 2 Mar 2000 18:41:00 -0500 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id TAA06501; Thu, 2 Mar 2000 19:53:49 -0500 Date: Thu, 2 Mar 2000 19:53:49 -0500 From: Jim Bauer Message-Id: <200003030053.TAA06501@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Newsgroups: local.dvd-discuss In-Reply-To: <00030215112200.00980@arh1176.urh.uiuc.edu> References: <20000302173454.5863.qmail@web502.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <00030215112200.00980@arh1176.urh.uiuc.edu> you write: > >I wonder if our argument that DVD Video could be fought with an argument like >this: "You might have the right to break CSS to get the program contents of the >.vob, but to have that part sent you the mpeg portions of the .vob you must >have a licensed player do the decryption." >The issue here is when a file is part program, part data, can it be >distinguished into parts like this would do? Are we safe making an argument >that a .vob file is a program, when certainly most of the bits in it are part >of video or sound streams, wrapped in the program part. All programs are part code (instructions) and data. Most usually have more code then data, but the reverse can certainly be true. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 18:53:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04797 for dvd-discuss-outgoing; Thu, 2 Mar 2000 18:53:22 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04794 for ; Thu, 2 Mar 2000 18:53:21 -0500 Received: from bugbug (max01-03.suba.com [206.69.121.195]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA16895 for ; Thu, 2 Mar 2000 19:06:06 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Taking a break Date: Thu, 2 Mar 2000 19:05:09 -0600 Message-ID: <000101bf84ac$851bdba0$f87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <200003022202.OAA06467@ns1.filetron.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares wrote: > > The announce list needs to light up a little more like with > tar.gz'd daily digests. > > Could be automated. > Two obvious organizationns of information: > Thread and date. > One missing: > Points made. > This could be assigned to whomever wants to reorganize the posts > according to what was argued. I need to figure this out. > > Rares This may sound sort of silly but bear with me: there's a way of saving a thread as a single document using Outlook. (Chanced upon this the other day trying to make all the threads portable, and saved all the posts as ONE doc. At that time it still fit on a floppy. :) ) Would you people like to have at their convenience such documents? Would they be useful? I know that for purposes of going over what has been said, something I am planning on doing over the next few days, in an effort to clarify and distill, having a single post in one doc makes my mind feel better. Sort of like little chaotic theme papers. A-hoo, if people are interested let me know, I can email them or Rob willing they can go next to the FAQ for download or I can put host them on my site for download. sapristi sparky (i don't know what sapristi means) From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 19:17:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10432 for dvd-discuss-outgoing; Thu, 2 Mar 2000 19:17:38 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10429 for ; Thu, 2 Mar 2000 19:17:37 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id RAA27622 for ; Thu, 2 Mar 2000 17:30:39 -0800 (PST) Message-ID: <38BF156D.7F4ECC87@cdpage.com> Date: Thu, 02 Mar 2000 18:29:17 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) References: <20000301212240.14673.qmail@web507.mail.yahoo.com> <00030119205100.27504@arh1176.urh.uiuc.edu> <20000302163951.D7744@localhost> <20000302161100.P13379@cty-alum.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen wrote: > Shouldn't that be "UDF" instead of "ISO"? I thought that most DVDs do not > use ISO filesystems at all -- with the probably exception of things like > the SuSE Linux DVD. > > -- > Seth David Schoen | And do not say, I will study when I > Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will > down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 DVD can use either, or preferably a hybrid of UDF and ISO. The actual version of UDF used is Micro UDF, a sebset of the UDF filesystem created by OSTA specifically for DVD. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 19:18:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10808 for dvd-discuss-outgoing; Thu, 2 Mar 2000 19:18:57 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10805 for ; Thu, 2 Mar 2000 19:18:56 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id RAA11372 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 17:40:32 -0800 Date: Thu, 2 Mar 2000 17:40:31 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302174031.L8922@duskglow.com> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38c5d3ea.20749010@mail.tiac.net> <20000302175953.E5222@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000302175953.E5222@linuxpower.org>; from greslin@linuxpower.org on Thu, Mar 02, 2000 at 05:59:53PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Maybe something we can also do is write up a short history of open-source software and a FAQ directed to the lawyers. Why do we do this, what can they expect from us, what motivates us, in short, what makes us tick and how can they benefit from it? Concrete examples are probably all that's going to help. No one can deny the overwhelming example of Linux. That is the flagship of our culture and the quintessential example of what makes us so effective. And so powerful. And such enemies of those who do not like the status quo to be disrupted and will attempt to stop us, no matter who they trample on and no matter whose rights they have to subjugate in order to gid rid of the threat that is us. Because we are a threat, and I for one am proud of that fact. Let's face it - the legal system is a cathedral and we are a bazaar. And although I don't know how this is going to end up, we're blazing new ground here, and trying to make inroads into a community that we've frankly held in disregard as a community for many years. Maybe for good reason, but that's the past. We owe it to ourselves and to them to try to make as crystal clear as possible what we stand for and why. If we do a good job of that maybe it'll be a little less difficult to keep the "wheels greased", as it were. In this new culture, they need us as much as we need them. They need us in order to understand the intricacies of technology we've spent years learning and hacking on and perfecting. We need them because without them this whole thing's going to come to naught in so many years. I keep getting this image in my mind: The difference between us techies and the lawyers is this: A lawyer would take the points here, slowly and methodically digest them and maybe spit something out, but only after extreme thought and research and care. And he/she may not choose to say *anything*. Throw something in the midst of a bunch of techies and the water boils and froths as we, as a bunch of piranhas, rip the idea to shreds amidst hundreds of posts and eventually, out comes something that may in terms of quality be higher than that of the lawyer above - and may not - but the process itself is NOT pretty. We have the responsibility to try to make this culture clash work for us, and not against us. A few understanding lawyers would go a long way towards this goal. --Russell On Thu, Mar 02, 2000 at 05:59:53PM -0500, greslin@linuxpower.org wrote: > > It's a good idea but it only addresses half the problem. It doesn't touch > the culture clash issue, which I think accounts for three-quarters of the > problem. > > ... -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 20:57:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04032 for dvd-discuss-outgoing; Thu, 2 Mar 2000 20:57:16 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04029 for ; Thu, 2 Mar 2000 20:57:16 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA27079 for ; Thu, 2 Mar 2000 22:10:04 -0500 (EST) Message-Id: <4.2.2.20000302154138.00b37100@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 02 Mar 2000 22:10:03 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Taking a break In-Reply-To: <20000302125528.A5222@linuxpower.org> References: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In the flood of messages, it's easy to forget that we have covered a considerable distance -- it's getting harder to continue because we have weeded out lots of the simplistic arguments. As a complement to the FAQ, which lists questions we've asked and answered (even if the answers are not yet etched in stone), I'm trying to put together a list of unanswered questions, legal or technical, whose answers might advance the arguments. Would it then make sense to create separate sub-lists for discussion of individual points? Would people join lists/groups to research specific questions and then reach a group consensus to add back to the whole list? I like the suggestion of listing "red herrings" too. When a thread reaches X posts, we need to take a step back from its debate and ask whether that continued discussion advances the case. A useful thread might then break off as a separate discussion, while one that was unproductive could be capped or put on hold. The more we can document where we've been and summarize at stages from which to move forward, the better. I've been silent for a while working out legal/political issues, so I can attest that those may be one factor (along with the time it takes to keep up) keeping attorneys out of the fray. --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 21:04:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05961 for dvd-discuss-outgoing; Thu, 2 Mar 2000 21:04:43 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05958 for ; Thu, 2 Mar 2000 21:04:43 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA29957 for ; Thu, 2 Mar 2000 22:17:31 -0500 (EST) Message-Id: <4.2.2.20000302153317.00b2fbb0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 02 Mar 2000 22:17:30 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Research tips and tools? In-Reply-To: <200003020433.UAA16928@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A tar.gz of the February mailbox is now linked off the "mailing list" page: http://eon.law.harvard.edu/archive/dvd-discuss/ I'll add an auto-updating link to the March package shortly. Would daily digests, to a second list or to the announce list, be useful? At 08:33 PM 3/1/00 -0800, rmarian@linuxstart.com wrote: >Can we each get a tar.gz(me) or zip of the mailing list? Using the the >web interface is well not very useful. > >Perhaps set up a list for research advice. What are you thinking about here? wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 21:46:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17715 for dvd-discuss-outgoing; Thu, 2 Mar 2000 21:46:11 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA17712 for ; Thu, 2 Mar 2000 21:46:10 -0500 Received: from bugbug (max02-20.suba.com [206.69.121.84]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA22708 for ; Thu, 2 Mar 2000 21:58:56 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Research tips and tools? Date: Thu, 2 Mar 2000 21:57:58 -0600 Message-ID: <000001bf84c4$a9a3bd40$547945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <200003020433.UAA16928@ns1.filetron.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm repeating here, but I am whipping together a set of txt files which are separate strings of posts saved together in asc order of date. Look, up in the sky, it's Query Boy! I don't have tar.gz; someone tell me what that means. Either that, or I can put them on my website, and everyone can go download them at will. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Rares Marian > Sent: Wednesday, March 01, 2000 10:33 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Research tips and tools? > > > Can we each get a tar.gz(me) or zip of the mailing list? Using > the the web interface is well not very useful. > > Perhaps set up a list for research advice. > > Rares > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 22:42:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA01016 for dvd-discuss-outgoing; Thu, 2 Mar 2000 22:42:00 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA01012 for ; Thu, 2 Mar 2000 22:41:59 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id VAA11771 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 21:03:33 -0800 Date: Thu, 2 Mar 2000 21:03:32 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000302210332.A11408@duskglow.com> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38BEDA71.1ED7D7A0@cdpage.com> <20000302181259.F5222@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000302181259.F5222@linuxpower.org>; from greslin@linuxpower.org on Thu, Mar 02, 2000 at 06:12:59PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu But you know something? We ARE "playing law". None of us have had any formal training in it and it's unreasonable to expect us to behave like lawyers. This reminds me a little bit of MS... don't provide the tools to do the job then tsktsktsk when we can't build things as "good" as they can. (on the MS platform). Just like lawyers and legislators are "playing techies". I mean, come on. They have no more understanding of the issues that they're dealing with technically, or the "hacker culture", than we do about the law or their culture. Ruling upon ruling proves that. But they're trying to make policies that affect all of us. Some may be more clued in than others, just like some of us are more clued in legally than others. But the end results are the same. If one is not careful than they can cause as much damage as we can. They are not above reproach. This can't be a nice thing to hear for a lawyer, I know that, but that's why we're here. We want to help. All we can bring to the table is immense computing resources, lots of energy and time, and the ability to research and try to distill and refine things to the best of our ability. Which has to be worth something... --Russell On Thu, Mar 02, 2000 at 06:12:59PM -0500, greslin@linuxpower.org wrote: > > The attorney I was (and still am, thank God) working with was becoming frustrated > with the same thing I was - the inclination on the part of certain few people > here to decide first what they wanted to believe, and then trying to make the > law fit that. I'm not naming names; I have no interest in turning this into a > flamefest. Needless to say, this particular attorney had come to the conclusion > that we were sort of "playing law" and not treating any of the issues with the > depth of respect that they deserved. When I asked him for clarifications and a > few simplifications concerning some FAQ questions, all hell broke loose. > > As I said elsewhere, once the two of us got our misunderstandings cleared up, > I got a lot of good stuff from him. I'm trying to digest it right now; I'm > reluctant to start talking yet because I'll probably get it wrong. When I put > the new FAQ up on Monday, I'll describe what I was told. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > P.S. BTW, the attorney in question is no longer subscribed to this list, because > the sheer volume of posts was too much for him. He didn't have time to keep up > with it all. He's informed me, however, that he wants to help and will be more > than happy to address any questions we send his way. -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 23:23:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11062 for dvd-discuss-outgoing; Thu, 2 Mar 2000 23:23:48 -0500 Received: from bigbrother.net (root@[208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11059 for ; Thu, 2 Mar 2000 23:23:46 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id WAA15858 for ; Thu, 2 Mar 2000 22:38:47 -0600 Date: Thu, 2 Mar 2000 22:38:47 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break In-Reply-To: <20000302174031.L8922@duskglow.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Maybe something we can also do is write up a short history of open-source > software and a FAQ directed to the lawyers. Why do we do this, what can > they expect from us, what motivates us, in short, what makes us tick and > how can they benefit from it? Concrete examples are probably all that's > going to help. Actually, there is plenty of good documentation about the history of Open Source software both on-line and in book form. The book "Open Sources" from O'reilley may be a good place to start, and there is also the infamous Cathedral and the Bazaar essay. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 23:37:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13275 for dvd-discuss-outgoing; Thu, 2 Mar 2000 23:37:27 -0500 Received: from bigbrother.net (root@[208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13272 for ; Thu, 2 Mar 2000 23:37:26 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id WAA16094 for ; Thu, 2 Mar 2000 22:52:27 -0600 Date: Thu, 2 Mar 2000 22:52:27 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break In-Reply-To: <20000302210332.A11408@duskglow.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Just like lawyers and legislators are "playing techies". I mean, come > on. They have no more understanding of the issues that they're dealing > with technically, or the "hacker culture", than we do about the law or > their culture. Ruling upon ruling proves that. But they're trying to > make policies that affect all of us. Some may be more clued in than > others, just like some of us are more clued in legally than others. > But the end results are the same. If one is not careful than they can > cause as much damage as we can. They are not above reproach. This > can't be a nice thing to hear for a lawyer, I know that, but that's > why we're here. We want to help. Personally I feel that the notion that somebody needs to be formally trained as a lawyer or a technician to understand those aspects of the issues here is not true. Granted there is a certain level of expertise that can come from formal training and education that may be more difficult to grasp on one's own. But I think we do ourselves a disservice to draw a bold line between these realms rather than recognizing it to be a continuous spectrum of understanding. Really I think that the best thing for both ends of the spectrum is the cross pollenization that happens through discussion lists like this. You've got lawyers, techies, and everything in between. Simply getting somebody else's perspective on things, right or wrong, expert or no, is valuable. Perhaps it is not the specific arguments that can be drawn from this list that will have the most value in court, but rather the perspectives displayed here that will help in the end. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 2 23:47:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15068 for dvd-discuss-outgoing; Thu, 2 Mar 2000 23:47:54 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA15065 for ; Thu, 2 Mar 2000 23:47:53 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id VAA26513 for dvd-discuss@eon.law.harvard.edu; Thu, 2 Mar 2000 21:58:58 -0800 Date: Thu, 2 Mar 2000 21:58:58 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Research tips and tools? Message-ID: <20000302215858.A13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003020433.UAA16928@ns1.filetron.com> <000001bf84c4$a9a3bd40$547945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000001bf84c4$a9a3bd40$547945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Mar 02, 2000 at 09:57:58PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky writes: > I'm repeating here, but I am whipping together a set of txt files which are > separate strings of posts saved together in asc order of date. Look, up in > the sky, it's Query Boy! I don't have tar.gz; someone tell me what that > means. http://www.gnu.org/software/tar/tar.html http://www.gnu.org/software/gzip/gzip.html ftp://ftp.gnu.org/pub/gnu/tar/ ftp://ftp.gnu.org/pub/gnu/gzip/ :-) (Yeah, you'll need to have tar and gzip already if you want to build those from source. A very convenient way to obtain them is to install one of the many fine free Unix systems now available pretty much anywhere.) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 00:39:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24276 for dvd-discuss-outgoing; Fri, 3 Mar 2000 00:39:38 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA24273 for ; Fri, 3 Mar 2000 00:39:36 -0500 Received: from [38.32.10.254] (helo=ip254.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12Qlwm-0007WF-00; Fri, 3 Mar 2000 01:52:25 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Date: Fri, 03 Mar 2000 06:50:39 GMT Message-ID: <38c95ead.56277258@mail.tiac.net> References: <38c38951.26301622@mail.tiac.net> In-Reply-To: <38c38951.26301622@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id AAA24274 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >I finally got a DVD of a public domain movie-- >Cabinet of Dr. Caligari (1919)--which seems to be encrypted. >(At least it doesn't produce DeCSS' "Error getting disk key. >Title might not be encrypted.") > re: Dr. Caligari DVD-- The liner notes claim this DVD is made from a 35mm copy of a 1923 German re-issue. Of course,1923 is the cut-off date for the Copyright Extension act. (Or is it now 24 or 25?) Anyway, there's no indication as to the date of the copy. So _that_ issue is definitely muddy. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 02:05:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09588 for dvd-discuss-outgoing; Fri, 3 Mar 2000 02:05:37 -0500 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA09585 for ; Fri, 3 Mar 2000 02:05:35 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id AAA12248 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 00:27:08 -0800 Date: Fri, 3 Mar 2000 00:27:08 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000303002708.E11408@duskglow.com> References: <20000302174031.L8922@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sterno@gemini.bigbrother.net on Thu, Mar 02, 2000 at 10:38:47PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu And I was referring to something targeted directly at people coming to this list from a "law culture". Something to ease the culture clash. Why do we post 80 posts full of garbage for every few gems? Why do we dive head- first into problems expecting to solve them? Why has this benefited us? Maybe it's not doable. I don't know. --Russell On Thu, Mar 02, 2000 at 10:38:47PM -0600, Steve Stearns wrote: > > Actually, there is plenty of good documentation about the history of Open > Source software both on-line and in book form. The book "Open > Sources" from O'reilley may be a good place to start, and there is also > the infamous Cathedral and the Bazaar essay. > > ---Steve -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 03:45:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA28780 for dvd-discuss-outgoing; Fri, 3 Mar 2000 03:45:12 -0500 Received: from mail.virtualrecordings.com (mail.virtualrecordings.com [209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA28777 for ; Fri, 3 Mar 2000 03:45:11 -0500 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-5.05) id ABCCDF8020E; Fri, 03 Mar 2000 00:46:04 -0800 Message-ID: <38BF8D17.2CE051C9@eff.org> Date: Fri, 03 Mar 2000 01:59:52 -0800 From: Robin Gross Organization: Electronic Frontier Foundation X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu CC: Wendy Seltzer Subject: [dvd-discuss] research questions - request for memos References: <200003020433.UAA16928@ns1.filetron.com> <000001bf84c4$a9a3bd40$547945ce@bugbug.WinNATDomain> <20000302215858.A13379@cty-alum.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hello folks: I have some specific questions that we need looked into and was hoping this list could take them on. Can someone please volunteer to take responsibility for researching the following issues and presenting a memo for each? I will leave it to you all to self-organize. My suggestion is to post the draft so the rest of the list can critique it, and then rework, based on the comments and post the final version. If we could have the first draft of each memo one week from today, it would really be a tremendous help to us. I'll be traveling in NY this weekend, but available via email. A lot of these issues have been discussed thoroughly on this list with many insightful comments, but now we need definitive and supported conclusions. Thank you all for your energy and support on this project. It is greatly appreciated! All the best, Robin --------------------------------------- LEGAL ISSUES: 1. We need a memo on the issue of DVD as a computer program or data file. What was the legislative intent behind the DMCA exemptions for DVDs? Do they apply or was this only intended for "software"? 2. DVD region coding and possible legal ramifications. Does this scheme violate antitrust laws as a cartel organizing a restraint in trade? Does this scheme violate a European Directive regarding unfair trade? 3. Comprehensive Fair Use Analysis. We need a memo outlining the most important fair use cases (approx. 35) and discussing how they impact this case. 4. Comprehensive Copyright/First Amendment Analysis. We need a memo outlining the most relevant copyright cases that have involved First Amendment defenses and discussing how they impact this case. 5. Reverse Engineering Analysis: We need a memo outlining the legal cases dealing with reverse engineering and how they apply to this case. 6. Click wrap licenses. a) What is the case law supporting the requirement for a manifesting of assent to contract? b) Does case law support the creation of binding agreements through purchase only? c) what is the impact of "hacking" around a click-wrap on the requirement for assent to contract? 7. What is the burden of proof standard regarding the weight of the evidence needed to prove an initial misappropriation in a trade secret case? What is the burden of proof (weight) needed to prove misappropriation by a republisher? 8. What are case law examples involving the loss of trade secret status through inadvertence? 9. What cases have discussed the limitations imposed upon Congress regarding Copyright? How does the Constitution constrain what Congress can do in fixing the rules for copyright? TECH ISSUES: 1. Region Coding. How does region coding prevent playback? What are the different ways to bypass this technological measure and how easy are they to accomplish? Are there DVDs that are coded to play in all regions? 2. True or False: It is impossible to fast-forward past commercials or FBI warnings on DVDs? 3. What other operating systems are left unsupported by DVDs? 4. What are other concrete examples are there of occasions in which reverse engineering has been critical to achieving a technological break through in an industry? Are there examples of other attempts to prevent such activity and what was the result? ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Robin D. Gross - Cyberspace Attorney @ Law Electronic Frontier Foundation 1550 Bryant Street, Suite 725, San Francisco, CA 94103 t: 415.436.9333 (x107) f: 415.436.9993 e: robin@eff.org w: http://www.eff.org RDG direct line: 415.863.5459 direct fax: 415.863.7154 EFF's Campaign for Audiovisual Free Expression: http://www.eff.org/cafe http://www.eff.org/pub/Intellectual_property/DVDCCA_case ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 04:03:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA31682 for dvd-discuss-outgoing; Fri, 3 Mar 2000 04:03:56 -0500 Received: from mail.virtualrecordings.com (mail.virtualrecordings.com [209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA31679 for ; Fri, 3 Mar 2000 04:03:55 -0500 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-5.05) id A0391A56024A; Fri, 03 Mar 2000 01:04:57 -0800 Message-ID: <38BF9185.A00C8C7A@eff.org> Date: Fri, 03 Mar 2000 02:18:45 -0800 From: Robin Gross Organization: Electronic Frontier Foundation X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: "dvd-discuss@eon.law.harvard.edu" CC: Wendy Seltzer Subject: [dvd-discuss] [Fwd: research questions - request for memos] Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I forgot to add a couple of the Tech Issues in the last email. Please append the following issues to list to of issues to be explored. Thanks. 5. Top five myths about DeCSS. What are the top five greatest misunderstandings about the DeCSS technology and why are they wrong? 6. I'm not sure this is even possible: Can we determine the number of copies of DeCSS found on Web Sites around the world on the following dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29? Please document all findings. If you can't find the historical figures, can we find current figures? Thank you! Robin Robin Gross wrote: > > Hello folks: > > I have some specific questions that we need looked into and was hoping > this list could take them on. Can someone please volunteer to take > responsibility for researching the following issues and presenting a > memo for each? I will leave it to you all to self-organize. My > suggestion is to post the draft so the rest of the list can critique it, > and then rework, based on the comments and post the final version. If > we could have the first draft of each memo one week from today, it would > really be a tremendous help to us. I'll be traveling in NY this > weekend, but available via email. A lot of these issues have been > discussed thoroughly on this list with many insightful comments, but now > we need definitive and supported conclusions. > > Thank you all for your energy and support on this project. It is > greatly appreciated! > > All the best, > Robin > > --------------------------------------- > > LEGAL ISSUES: > > 1. We need a memo on the issue of DVD as a computer program or data > file. What was the legislative intent behind the DMCA exemptions for > DVDs? Do they apply or was this only intended for "software"? > > 2. DVD region coding and possible legal ramifications. Does this > scheme violate antitrust laws as a cartel organizing a restraint in > trade? Does this scheme violate a European Directive regarding unfair > trade? > > 3. Comprehensive Fair Use Analysis. We need a memo outlining the most > important fair use cases (approx. 35) and discussing how they impact > this case. > > 4. Comprehensive Copyright/First Amendment Analysis. We need a memo > outlining the most relevant copyright cases that have involved First > Amendment defenses and discussing how they impact this case. > > 5. Reverse Engineering Analysis: We need a memo outlining the legal > cases dealing with reverse engineering and how they apply to this case. > > 6. Click wrap licenses. a) What is the case law supporting the > requirement for a manifesting of assent to contract? b) Does case law > support the creation of binding agreements through purchase only? c) > what is the impact of "hacking" around a click-wrap on the requirement > for assent to contract? > > 7. What is the burden of proof standard regarding the weight of the > evidence needed to prove an initial misappropriation in a trade secret > case? What is the burden of proof (weight) needed to prove > misappropriation by a republisher? > > 8. What are case law examples involving the loss of trade secret status > through inadvertence? > > 9. What cases have discussed the limitations imposed upon Congress > regarding Copyright? How does the Constitution constrain what Congress > can do in fixing the rules for copyright? > > TECH ISSUES: > > 1. Region Coding. How does region coding prevent playback? What are > the different ways to bypass this technological measure and how easy are > they to accomplish? Are there DVDs that are coded to play in all > regions? > > 2. True or False: It is impossible to fast-forward past commercials or > FBI warnings on DVDs? > > 3. What other operating systems are left unsupported by DVDs? > > 4. What are other concrete examples are there of occasions in which > reverse engineering has been critical to achieving a technological break > through in an industry? Are there examples of other attempts to prevent > such activity and what was the result? > > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > Robin D. Gross - Cyberspace Attorney @ Law > Electronic Frontier Foundation > 1550 Bryant Street, Suite 725, San Francisco, CA 94103 > t: 415.436.9333 (x107) f: 415.436.9993 > e: robin@eff.org w: http://www.eff.org > RDG direct line: 415.863.5459 direct fax: 415.863.7154 > EFF's Campaign for Audiovisual Free Expression: > http://www.eff.org/cafe > http://www.eff.org/pub/Intellectual_property/DVDCCA_case > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ -- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Robin D. Gross - Cyberspace Attorney @ Law Electronic Frontier Foundation 1550 Bryant Street, Suite 725, San Francisco, CA 94103 t: 415.436.9333 (x107) f: 415.436.9993 e: robin@eff.org w: http://www.eff.org RDG direct line: 415.863.5459 direct fax: 415.863.7154 EFF's Campaign for Audiovisual Free Expression: http://www.eff.org/cafe http://www.eff.org/pub/Intellectual_property/DVDCCA_case ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 06:33:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA23412 for dvd-discuss-outgoing; Fri, 3 Mar 2000 06:33:09 -0500 Received: from sarah.firehead.mnet (cs2720-214.austin.rr.com [24.27.20.214]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA23409 for ; Fri, 3 Mar 2000 06:33:08 -0500 Received: from earthling.net (jeffrey@localhost [127.0.0.1]) by sarah.firehead.mnet (8.9.3/8.9.3) with ESMTP id GAA25589 for ; Fri, 3 Mar 2000 06:45:56 -0600 Message-ID: <38BFB404.8B6B0227@earthling.net> Date: Fri, 03 Mar 2000 06:45:56 -0600 From: Jeffrey Bridge Organization: FireHead Inc. X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.14 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] research questions References: <38BF9185.A00C8C7A@eff.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robin Gross wrote: > 6. I'm not sure this is even possible: Can we determine the number of > copies of DeCSS found on Web Sites around the world on the following > dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29? Please document > all findings. If you can't find the historical figures, can we find > current figures? > I have an archive of versions http://www.lemuria.org/DeCSS/index.shtml and mirrors.html that ranges from Nov 12 to Dec 20th and contains up to 900 or so different versions, I believe one every hour. It is located at http://dericho.members.firehead.org/dvd/www.lemuria.org/DeCSS/ I would go through it myself to try and get some tallies, but at the moment I have very little spare time. Tilde, Jeffrey :j From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 08:59:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25389 for dvd-discuss-outgoing; Fri, 3 Mar 2000 08:59:15 -0500 Received: from localhost.localdomain (root@joeyhunter.com [206.68.131.200] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA25385 for ; Fri, 3 Mar 2000 08:59:14 -0500 Received: from bigbrother.net (IDENT:sterno@localhost.localdomain [127.0.0.1]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id JAA00964 for ; Fri, 3 Mar 2000 09:10:45 -0600 Message-ID: <38BFD5F4.707DB0A7@bigbrother.net> Date: Fri, 03 Mar 2000 09:10:45 -0600 From: Steve Stearns X-Mailer: Mozilla 4.61 [en] (X11; U; Linux 2.2.12-20 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break References: <20000302174031.L8922@duskglow.com> <20000303002708.E11408@duskglow.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > And I was referring to something targeted directly at people coming to this > list from a "law culture". Something to ease the culture clash. Why do we > post 80 posts full of garbage for every few gems? Why do we dive head- > first into problems expecting to solve them? Why has this benefited us? > Maybe it's not doable. I don't know. I belive that it is quite doable. I'm sure that a number of people on this list are both a Lawyer and a Techie and understand both realms well. Now if they just have the skills as a writer and the desire to do so, we may have a winner. Other than that I'm sure each one of us who have a passion about this issue can sit down and write something about why we feel it is important. Probably not something to send out to the list en masse, but putting together some of these essays on a website might be nice. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 09:50:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01973 for dvd-discuss-outgoing; Fri, 3 Mar 2000 09:50:28 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA01947 for ; Fri, 3 Mar 2000 09:50:22 -0500 Received: (qmail 24873 invoked by uid 60001); 3 Mar 2000 16:03:02 -0000 Message-ID: <20000303160302.24872.qmail@web506.mail.yahoo.com> Received: from [131.44.121.4] by web506.mail.yahoo.com; Fri, 03 Mar 2000 08:03:02 PST Date: Fri, 3 Mar 2000 08:03:02 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steven Barker wrote: > > [...] Note the distiction between the analyzed program, the > > independently created program, and the other programs. The point is > > you replace a program with another and preserve interoperation. > > What program are you replacing though? The language you quote > suggests that the replacement is of the "analyzed program" that is > protected by encryption. Using DeCSS allows the replacement of one > of the "other programs", namely the player. DeCSS is a piece of a replacement for the player, eg XingDVD, which is the "analyzed program". There are several choices for the "other program": the movie specific interface program on the DVD, and/or the authoring program both exchange information with XingDVD, which is being replaced by LiViD and/or DeCSS + an MPEG2 player. > > > Note the earlier sentence: "this provision applies to computer > > > programs [...] and not to works generally, such as music or > > audiovisual > > > works [...]". The earlier sentence seems to suggest that "other > than > > a > > > computer program" modifies "work", not "measure". How do you > > > reconcile your interpretation with the earlier sentence? > > > > This is saying that you may reverse engineer a program, but you may > not > > reverse engineer 'works generally'. Suppose programs A and B > exchange > > data files X, Y, Z, which may be music or movies or whatever. Read > the > > quote as : The reverse engineering provisions apply to computer > > programs A and B and not to works such as X, Y, Z. In other words, > you > > can replace one computer program with another, but by doing so you > > don't gain any licences to works - you will still violate (a)(1) if > you > > use reverse engineered tools to access unlicenced works. > > I wonder if our argument that DVD Video could be fought with an > argument like > this: "You might have the right to break CSS to get the program > contents of the .vob, but to have that part sent you the mpeg portions of > the .vob you must have a licensed player do the decryption." Actually, the title key (that the movie itself is encrypted with) is on the DVD. A licenced player comes with a player key that you need to get to the title key. I would argue that you bypass only the title key encryption, because when you have this, you "go in throught the front door" to play the movie. > The issue here is when a file is part program, part data, can it be > distinguished into parts like this would do? Are we safe making an > argument that a .vob file is a program, when certainly most of the bits > in it are part of video or sound streams, wrapped in the program part. As long as there is some identifiable piece, however small, that is a "program" under the broad definition of 17 USC 101, then the rest of the data is just "exchanged information", so I think it's fine. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 09:50:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02165 for dvd-discuss-outgoing; Fri, 3 Mar 2000 09:50:56 -0500 Received: from dial227.roadrunner.com (dial227.cybermesa.com [209.12.75.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA02120 for ; Fri, 3 Mar 2000 09:50:51 -0500 Received: (from paul@localhost) by dial227.roadrunner.com (8.8.7/8.8.7) id JAA11210 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 09:06:55 -0700 Date: Fri, 3 Mar 2000 09:06:53 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Message-ID: <20000303090652.A11116@localhost> References: <38c38951.26301622@mail.tiac.net> <38c95ead.56277258@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38c95ead.56277258@mail.tiac.net>; from rongus@tiac.net on Fri, Mar 03, 2000 at 06:50:39AM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 06:50:39AM +0000, Ron Gustavson wrote: > > >I finally got a DVD of a public domain movie-- > >Cabinet of Dr. Caligari (1919)--which seems to be encrypted. > >(At least it doesn't produce DeCSS' "Error getting disk key. > >Title might not be encrypted.") > > > re: Dr. Caligari DVD-- > > The liner notes claim this DVD is made from a 35mm copy of a > 1923 German re-issue. Of course,1923 is the cut-off date for the > Copyright Extension act. (Or is it now 24 or 25?) Anyway, there's > no indication as to the date of the copy. > > So _that_ issue is definitely muddy. For material originally covered by a U.S. copyright that has been renewed, 1923 would still definitely be covered by copyright. But this is a re-issue. One should not conclude that the copyright date is 1923. The fact that the DVD references 1919 suggests that this is/was the copyright date. The issue may be muddy, but that is because the movie was made and copyrighted outside the United States. Most old Chaplin movies simplify this aspect of things -- they were originally U.S. copyright, and the NY case is in the United States(!). There are no additional layers of funny business with the duration of copyright. In general, material copyrighted on or after Jan. 1, 1923 in the U.S. is covered by U.S. copyright, if it has been renewed. Some material after this date is in the public domain, and all material before this date and originally covered by a U.S. copyright is in the public domain. The situation with foreign copyrights may be more complicated, I'm still working on it... Oh yeah, it will not be until 2019 that an entire year's worth of material compulsorily enters the public domain. Assuming that Congress doesn't extend existing copyrights for a 12th time. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 09:56:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03451 for dvd-discuss-outgoing; Fri, 3 Mar 2000 09:56:20 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA03448 for ; Fri, 3 Mar 2000 09:56:20 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id LAA02827 for ; Fri, 3 Mar 2000 11:09:09 -0500 (EST) Message-Id: <4.2.2.20000303103314.00b49300@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 03 Mar 2000 11:09:05 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] DVD is a program -- what's the second program? In-Reply-To: References: <89i48b$8u8$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:42 AM 3/1/00 +0100, frank@funcom.com wrote: [lots of good discussion] >To answer your question, yes it can be argued that all DVD movies meet the >definition of 'computer program' in the united states copyright law. For the next stage of the interoperability argument, what programs, existing or to be developed, would interoperate with the DVD movie program? from sec. 1201 (f)(3): "The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2) [DeCSS], may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section." It sounds as though we now need a second program, that does not itself "circumvent" CSS, but requires DeCSS for its development or operation. If I wanted to develop a movie add-on to be used by licensed viewers of DVDs, I might be allowed to reverse engineer to get there. Questions: 1) What is the second program? Would a "utility to allow fast-forwarding past opening screens" or a "movie bookmark," for example, be enough? 2) Is it possible that the subsection does not prohibit the second program from bypassing access controls (it refers only to "infringement")? If the second program merely allowed for viewing of a movie excerpt or changed the order of play (changing access), but did not copy or redistribute the work (no infringement), would it be exempt? Is (f)(3) an out for LiViD (apart from whether that's built on/with DeCSS)? --Wendy wendy@seltzer.com Fellow, Berkman Center for Internet & Society Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 11:19:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23568 for dvd-discuss-outgoing; Fri, 3 Mar 2000 11:19:28 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA23564 for ; Fri, 3 Mar 2000 11:19:10 -0500 Received: (qmail 25871 invoked by uid 60001); 3 Mar 2000 17:31:56 -0000 Message-ID: <20000303173156.25870.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Fri, 03 Mar 2000 09:31:56 PST Date: Fri, 3 Mar 2000 09:31:56 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] DVD is a program -- what's the second program? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Wendy Seltzer wrote: > Questions: > 1) What is the second program? Would a "utility to allow > fast-forwarding past opening screens" or a "movie bookmark," for > example, be enough? It definately would, and it would be innovative and useful. Eventually, somebody will write a DVD "touch up" program, sort of like GIMP (or Adobe Photoshop) for videos. I'm sure this is the MPAA's biggest fear, but parodies and reviews, etc... would definitely make fair use of such material. I don't think the law requires anything so innovative, (as simple player would do for the 2nd program), but it should help the judge understand the value of reverse engineering. As the Senate report says, "The purpose of this [reverse engineering] section is to foster competition and innovation in the computer and software industry." > 2) Is it possible that the subsection does not prohibit the second > program from bypassing access controls (it refers only to > "infringement")? If the second program merely allowed for viewing of a > movie excerpt or changed the order of play (changing access), but did > not copy or redistribute the work (no infringement), would it be exempt? > Is (f)(3) an out for LiViD (apart from whether that's built on/with > DeCSS)? After being hammered so hard by the judge about the distinction between trafficking in circumvention tools and copyright infringement, it'll be nice to leverage this in the interpretation of this clause. Given this difference, the "infringement" language here should only mean that you can't rip off parts of the reverse engineered program and you don't get licences to any movies just because you hacked out a player. "Fair use" should make a triumphant return here to save DeCSS. If the encryption bypassing qualifies for the 1201(f) exception, then it shouldn't matter that after it's descrambled that it's copied to the harddrive, because this IS fair use (just like a VCR). It would be exactly like VCR'ing a movie on cable TV - if you can view it legally, you can record it. Fair use is not infringement. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 11:22:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25442 for dvd-discuss-outgoing; Fri, 3 Mar 2000 11:22:28 -0500 Received: from orange.fenimore.org (dial96.cybermesa.com [209.12.75.96]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA25303 for ; Fri, 3 Mar 2000 11:22:22 -0500 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id KAA11566 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 10:38:20 -0700 Date: Fri, 3 Mar 2000 10:38:19 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000303103818.A11320@localhost> References: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <4.2.2.20000302154138.00b37100@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000302154138.00b37100@law.harvard.edu>; from wendy@seltzer.com on Thu, Mar 02, 2000 at 10:10:03PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 10:10:03PM -0500, Wendy Seltzer wrote: > In the flood of messages, it's easy to forget that we have covered a > considerable distance -- it's getting harder to continue because we have > weeded out lots of the simplistic arguments. As a complement to the FAQ, > which lists questions we've asked and answered (even if the answers are not > yet etched in stone), I'm trying to put together a list of unanswered > questions, legal or technical, whose answers might advance the arguments. > > Would it then make sense to create separate sub-lists for discussion of > individual points? Would people join lists/groups to research specific > questions and then reach a group consensus to add back to the whole list? 1. Once the participants in a thread either reach a conclusion or an impass, they should try to hammer out a concise (if possible) statement of the thread's results, and include the necessary references and urls and headers to particular messages on dvd-discuss. If that circulates as a "draft" on dvd-discuss for a while, that's fine. But at some point, it needs to get put up on a web-site, or in the faq with full references, so that people can have a centralized place to look at them, without wading throught the full volume of dvd-discuss. A certain amount of this has been going on already, but I see two flaw with the current process. At the end of a lengthy discussion, folks are tired and don't feel like making a concluding statment, and if they do, it is buried in 1000+ messages of dvd-discuss. I've included a reasonable draft conclusion below. 2. I think splitting dvd-discuss along the lines of discussion threads is a bad idea. On one hand, if people (continue to) make a modest effort to keep a discussion on-topic, then threading and subject lines allow one to segregate the various thought-trains. On the other hand, splitting dvd-discuss does two things. First, it doesn't actually lower the volume of discussion. Second, it is adding a mechanism that people already have available to them: private e-mail. At the same I realize that the volume on dvd-discuss is a problem for some people. If a new list is necessary I think it should serve the purpose of circulating drafts, or digests, or what not, and be intermediate between dvd-discuss and dvd-announce in flow-rate. It would need to be moderated of course, which is a nuisance because that will take some time on the part of someone here. It may be a necessary nuisance though. ------- Here is my example of a proposed conclusion, as made by Bryan Taylor. Sorry, I need to pick on someone to make this concrete, better you than me :] ====== Date: Wed, 23 Feb 2000 21:53:07 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Programs sharing information To: dvd-discuss@eon.law.harvard.edu Message-ID: <20000224055307.17669.qmail@web508.mail.yahoo.com> 21:53:07 PST Reply-To: dvd-discuss@eon.law.harvard.edu Is anyone prepared to argue that the encrypted content burned onto the DVD's during manufacturing was NOT created by a 'program'? I think the interoperability needed by (f)(2) is pretty simple unless someone can argue the above. The encrypted content is originally created by a program. A manufacturing, packaging, distribution, and retail system deliver the information hidden in the encrypted files to the consumer, who with the help of his DVD device and operating system delivers it to the playback program. This is a complicated transfer of information from one program to another, but a transfer none the less. By this miracle of modern society the encrypting program and the decrypting program share information and thus interoperate. ===== a. Bryan's basic statement is clear and concise. b. He includes a reference to the law. c. In his next message he tied up some loose ends. Now, this particular message has spawned at least six other replies, but that is ok. In this particular example, what I think needs to happen is: (i) This statment needs to made available in a lower-flow environment. I don't think it is critical whether that environment is web-based or a new mailing list, or both. (ii) A few references to the threads that spawned this draft conclusion should be made. (iii) See below, include a mention of the more prominent red herrings that came up in arriving at this point. > I like the suggestion of listing "red herrings" too. When a thread reaches > X posts, we need to take a step back from its debate and ask whether that > continued discussion advances the case. A useful thread might then break > off as a separate discussion, while one that was unproductive could be > capped or put on hold. The more we can document where we've been and > summarize at stages from which to move forward, the better. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 13:22:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14293 for dvd-discuss-outgoing; Fri, 3 Mar 2000 13:22:44 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA14242 for ; Fri, 3 Mar 2000 13:22:42 -0500 Received: (qmail 20623 invoked from network); 3 Mar 2000 19:31:16 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 3 Mar 2000 19:31:16 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id LAA29199; Fri, 3 Mar 2000 11:35:45 -0800 Date: Fri, 3 Mar 2000 11:35:45 -0800 Message-Id: <200003031935.LAA29199@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Research tips and tools? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >A tar.gz of the February mailbox is now linked off the "mailing list" page: >http://eon.law.harvard.edu/archive/dvd-discuss/ >I'll add an auto-updating link to the March package shortly. > >Would daily digests, to a second list or to the announce list, be useful? Yes that would be great. >At 08:33 PM 3/1/00 -0800, rmarian@linuxstart.com wrote: >>Can we each get a tar.gz(me) or zip of the mailing list? Using the the >>web interface is well not very useful. >> >>Perhaps set up a list for research advice. > >What are you thinking about here? Like how important is precedent? Or even Kaplan like X, Y, Z how do we make sure we kill the MPAA's XYZ. (Enough with the proDeCSS rants) >wendy@seltzer.com || wseltzer@kramerlevin.com >http://cyber.law.harvard.edu/seltzer.html > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 14:46:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01786 for dvd-discuss-outgoing; Fri, 3 Mar 2000 14:46:32 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01783 for ; Fri, 3 Mar 2000 14:46:31 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA17863 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 14:59:16 -0600 Date: Fri, 3 Mar 2000 14:59:16 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] authorized? Message-ID: <20000303145916.A17823@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Has the idea of "authorization" already been dismissed as a dead end? If so, why? It seems to me to be a very valid concern with 17 USC 1201 in general. Here's the problem as I see it: 1. 1201(a)(3)(A) defines circumvention as removing technological measures "without the authority of the copyright owner". The members of the MPAA have collectively deemed DeCSS "unauthorized". 2. There may be today, or we may be able to become ourselves, DVD copyright owners that authorize DeCSS, LiViD, etc. 3. Points 1 and 2 are in conflict. If one copyright owner "approves" a device and another copyright owner does not, who wins? I'd like to investigate this further so I'd like to hear legal opinion on whether this is useless in the MPAA cases (new york, connecticut). Variations on this theme: a. write a CSS encryption program, press some DVDs, announce "authorization" of DeCSS, LiViD. b. write a CSS encrption program, press some DVDs, sue Sony for distributing an "unauthorized" access device. :) c. find an independent movie maker who wants to annoy the MPAA, and get them to "authorize" DeCSS and Livid. d. start rattling off names of copyright owners in court and make the plaintiffs try to answer whether they have "authorized" particular players. (rhetorical because there may be 100 players and 100 copyright owners = 10,000 possible "authorizations") Please, someone tell me if I'm missing something- this seems like a huge hole in 1201. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 15:47:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14852 for dvd-discuss-outgoing; Fri, 3 Mar 2000 15:47:08 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA14849 for ; Fri, 3 Mar 2000 15:47:06 -0500 Received: (qmail 29317 invoked from network); 3 Mar 2000 21:55:33 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 3 Mar 2000 21:55:33 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA14083; Fri, 3 Mar 2000 14:00:02 -0800 Date: Fri, 3 Mar 2000 14:00:02 -0800 Message-Id: <200003032200.OAA14083@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Devil Music :) Re: [dvd-discuss] authorized? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu MPAA acts upon the wishes of its members. Therefore IT was in fact those companies who chose to unathorize DeCSS. However, the independent authorization best applies to SuSE 6.3 DVD + GPL. Yes, there's a hole. Hmm... I haven't been a very good devil :/ Rares Eric Seppanen wrote: >Has the idea of "authorization" already been dismissed as a dead end? If >so, why? It seems to me to be a very valid concern with 17 USC 1201 in >general. > >Here's the problem as I see it: > >1. 1201(a)(3)(A) defines circumvention as removing technological measures >"without the authority of the copyright owner". The members of the MPAA >have collectively deemed DeCSS "unauthorized". > >2. There may be today, or we may be able to become ourselves, DVD >copyright owners that authorize DeCSS, LiViD, etc. > >3. Points 1 and 2 are in conflict. If one copyright owner "approves" a >device and another copyright owner does not, who wins? > >I'd like to investigate this further so I'd like to hear legal opinion on >whether this is useless in the MPAA cases (new york, connecticut). > >Variations on this theme: > >a. write a CSS encryption program, press some DVDs, announce >"authorization" of DeCSS, LiViD. > >b. write a CSS encrption program, press some DVDs, sue Sony for >distributing an "unauthorized" access device. :) > >c. find an independent movie maker who wants to annoy the MPAA, and get >them to "authorize" DeCSS and Livid. > >d. start rattling off names of copyright owners in court and make the >plaintiffs try to answer whether they have "authorized" particular >players. (rhetorical because there may be 100 players and 100 copyright >owners = 10,000 possible "authorizations") > >Please, someone tell me if I'm missing something- this seems like a huge >hole in 1201. > >Eric Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 17:00:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31158 for dvd-discuss-outgoing; Fri, 3 Mar 2000 17:00:06 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31155 for ; Fri, 3 Mar 2000 17:00:05 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id RAA18166 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 17:12:54 -0600 Date: Fri, 3 Mar 2000 17:12:54 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Devil Music :) Re: [dvd-discuss] authorized? Message-ID: <20000303171254.A18082@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003032200.OAA14083@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <200003032200.OAA14083@ns1.filetron.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 02:00:02PM -0800, Rares Marian wrote: > MPAA acts upon the wishes of its members. Therefore IT was in fact > those companies who chose to unathorize DeCSS. > > However, the independent authorization best applies to SuSE 6.3 DVD + > GPL. No. CSS is only used (currently) on DVD-video. Software stored on DVD-ROM won't use CSS, and has no use for DeCSS. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 17:32:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05958 for dvd-discuss-outgoing; Fri, 3 Mar 2000 17:32:45 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA05955 for ; Fri, 3 Mar 2000 17:32:44 -0500 Received: (qmail 2681 invoked from network); 3 Mar 2000 23:41:19 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 3 Mar 2000 23:41:19 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id PAA11568; Fri, 3 Mar 2000 15:45:47 -0800 Date: Fri, 3 Mar 2000 15:45:47 -0800 Message-Id: <200003032345.PAA11568@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: Devil Music :) Re: [dvd-discuss] authorized? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: >On Fri, Mar 03, 2000 at 02:00:02PM -0800, Rares Marian wrote: >> MPAA acts upon the wishes of its members. Therefore IT was in fact >> those companies who chose to unathorize DeCSS. >> >> However, the independent authorization best applies to SuSE 6.3 DVD + >> GPL. > >No. CSS is only used (currently) on DVD-video. Software stored on >DVD-ROM won't use CSS, and has no use for DeCSS. Try again. DVD == game console ROM. DVD-video is a special case of that. If you want to make something readable in a consumer player it uses DeCSS. DVD-RAM doesn't count the public cannot read those. Only your DVD-RAM player. >Eric Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 17:54:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10790 for dvd-discuss-outgoing; Fri, 3 Mar 2000 17:54:07 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10787 for ; Fri, 3 Mar 2000 17:54:06 -0500 Received: from [38.32.10.70] (helo=ip70.bedford2.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12R25x-00040z-00; Fri, 3 Mar 2000 19:06:57 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: Devil Music :) Re: [dvd-discuss] authorized? Date: Sat, 04 Mar 2000 00:05:51 GMT Message-ID: <38ce52fd.30766459@mail.tiac.net> References: <200003032345.PAA11568@ns1.filetron.com> In-Reply-To: <200003032345.PAA11568@ns1.filetron.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id RAA10788 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >1. 1201(a)(3)(A) defines circumvention as removing technological measures >"without the authority of the copyright owner". The members of the MPAA >have collectively deemed DeCSS "unauthorized". > >2. There may be today, or we may be able to become ourselves, DVD >copyright owners that authorize DeCSS, LiViD, etc. > >3. Points 1 and 2 are in conflict. If one copyright owner "approves" a >device and another copyright owner does not, who wins? I think Eric has a major point here. It is the MPAA's hubris to assume that they are the only copyright owners. Anyone could make a DVD video, send it to a one-off DVD producer and have them apply CSS to the glass master. And then "authorize it for use with DeCSS--perhaps only DeCSS/LiViD." Why not? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 18:10:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13682 for dvd-discuss-outgoing; Fri, 3 Mar 2000 18:10:10 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA13679 for ; Fri, 3 Mar 2000 18:10:09 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id QAA13596 for ; Fri, 3 Mar 2000 16:23:14 -0800 (PST) Message-ID: <38C05718.DA9EBC50@cdpage.com> Date: Fri, 03 Mar 2000 17:21:44 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Devil Music :) Re: [dvd-discuss] authorized? References: <200003032345.PAA11568@ns1.filetron.com> Content-Type: multipart/alternative; boundary="------------AE1B92A9B4266F0791059369" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --------------AE1B92A9B4266F0791059369 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Rares Marian wrote: > Eric Seppanen wrote: > > > >No. CSS is only used (currently) on DVD-video. Software stored on > >DVD-ROM won't use CSS, and has no use for DeCSS. > > Try again. DVD == game console ROM. DVD-video is a special case of that. If you want to make something readable in a consumer player it uses DeCSS. > DVD-RAM doesn't count the public cannot read those. Only your DVD-RAM player. > > He's right, CSS is used only on video. Not all DVD Videos use CSS, but CSS does not work on DVD-ROM. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com --------------AE1B92A9B4266F0791059369 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Rares Marian wrote:
Eric Seppanen <eds@reric.net> wrote:
>
>No.  CSS is only used (currently) on DVD-video.  Software stored on
>DVD-ROM won't use CSS, and has no use for DeCSS.

Try again.  DVD == game console ROM.  DVD-video is a special case of that.  If you want to make something readable in a consumer player it uses DeCSS.
DVD-RAM doesn't count the public cannot read those.  Only your DVD-RAM player.
 
 

He's right, CSS is used only on video. Not all DVD Videos use CSS, but CSS does not work on DVD-ROM.
 
 
 

--
Dana J. Parker
Consultant
http://www.cdpage.com
Contributing editor/standards columnist
Emedia magazine
http://www.emediapro.net
DVD PRO Conference Chair
http://www.dvdpro.net
I support the Campaign for Audiovisual Free Expression
http://www.eff.org/cafe

mailto:danapark@ix.netcom.com
  --------------AE1B92A9B4266F0791059369-- From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 18:16:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15170 for dvd-discuss-outgoing; Fri, 3 Mar 2000 18:16:48 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15167 for ; Fri, 3 Mar 2000 18:16:48 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA01206 for ; Fri, 3 Mar 2000 18:29:30 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Research tips and tools? Date: Fri, 3 Mar 2000 18:28:33 -0600 Message-ID: <000001bf8570$929da6e0$d67945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <200003031935.LAA29199@ns1.filetron.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Everyone, currently I have placed as much of the posting as I had in my mailbox on my website in format of 1 thread OR 1 subject = 1 txt document. http://www.zenadmen.com/anti1201. This was a 2 hour hack so it will not be the best organization possible. I plan on going through and trimming down the number of folders on the site and consolidating the txt files. Please email me with recommendations as to organize the documents if you deem necessary. I can also re-save the posts into txt files again if you there are enough people who think that given documents should be combined. Likewise for splitting a single document. This would also be a good place to put up Robin's memos, see that post. sparky ps Rares, I don't know if this is a suitable arrangement for you. I wish I knew more about Lx. I actually have both SuSE and Caldera, but each time I tried installing I had different problems (mouse with S, partitions screwed with C). > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Rares Marian > Sent: Friday, March 03, 2000 1:36 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Research tips and tools? > > > Wendy Seltzer wrote: > >A tar.gz of the February mailbox is now linked off the "mailing > list" page: > >http://eon.law.harvard.edu/archive/dvd-discuss/ > >I'll add an auto-updating link to the March package shortly. > > > >Would daily digests, to a second list or to the announce list, be useful? > > Yes that would be great. > > > >At 08:33 PM 3/1/00 -0800, rmarian@linuxstart.com wrote: > >>Can we each get a tar.gz(me) or zip of the mailing list? Using the the > >>web interface is well not very useful. > >> > >>Perhaps set up a list for research advice. > > > >What are you thinking about here? > > Like how important is precedent? > Or even Kaplan like X, Y, Z how do we make sure we kill the MPAA's XYZ. > (Enough with the proDeCSS rants) > > >wendy@seltzer.com || wseltzer@kramerlevin.com > >http://cyber.law.harvard.edu/seltzer.html > > > Rares > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 3 19:35:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA31734 for dvd-discuss-outgoing; Fri, 3 Mar 2000 19:35:48 -0500 Received: from dial132.roadrunner.com (dial132.cybermesa.com [209.12.75.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA31699 for ; Fri, 3 Mar 2000 19:35:45 -0500 Received: (from paul@localhost) by dial132.roadrunner.com (8.8.7/8.8.7) id SAA12808 for dvd-discuss@eon.law.harvard.edu; Fri, 3 Mar 2000 18:51:53 -0700 Date: Fri, 3 Mar 2000 18:51:52 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Message-ID: <20000303185151.A12707@localhost> References: <20000303145916.A17823@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000303145916.A17823@thud.reric.net>; from eds@reric.net on Fri, Mar 03, 2000 at 02:59:16PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 02:59:16PM -0600, Eric Seppanen wrote: > Has the idea of "authorization" already been dismissed as a dead end? If > so, why? It seems to me to be a very valid concern with 17 USC 1201 in > general. [ snip lots of useful points ] > Please, someone tell me if I'm missing something- this seems like a huge > hole in 1201. You have good points. Some of this has been discussed already. Further development would be a good thing. For a partial history on dvd-discuss, take a look at: Date: Sun, 27 Feb 2000 11:44:05 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Quality King v L'Anza, Exclusive Rights & First Sale Message-ID: <20000227194405.22337.qmail@web504.mail.yahoo.com> Date: Mon, 14 Feb 2000 08:44:41 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] This DVD is for private home viewing only Message-ID: <20000214164441.9480.qmail@web501.mail.yahoo.com> Date: Sun, 13 Feb 2000 23:09:42 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] This DVD is for private home viewing only Message-ID: <20000214070942.21082.qmail@web505.mail.yahoo.com> There is more than this, but my search on the string "without the authority of the copyright owner" turned up this much. The 28 Feb. version of the FAQ only defines authority, even though more is known than that. I think that a clear summary of the progress made so far on "authorization," and the status of outstanding questions would be useful. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 11:39:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09831 for dvd-discuss-outgoing; Sat, 4 Mar 2000 11:39:57 -0500 Received: from tomts2-srv.bellnexxia.net (tomts2.bellnexxia.net [209.226.175.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09828 for ; Sat, 4 Mar 2000 11:39:56 -0500 Received: from sympatico.ca ([206.172.235.141]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000304175216.SMZO17030.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Sat, 4 Mar 2000 12:52:16 -0500 Message-ID: <38C14ECA.8FE92D5B@sympatico.ca> Date: Sat, 04 Mar 2000 12:58:34 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Another way of seeing it... References: <20000303145916.A17823@thud.reric.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > > Has the idea of "authorization" already been dismissed as a dead end? If > so, why? It seems to me to be a very valid concern with 17 USC 1201 in > general. Not at all, in my opinion - I think a really stimulating issue is raised here... > Here's the problem as I see it: > > 1. 1201(a)(3)(A) defines circumvention as removing technological measures > "without the authority of the copyright owner". The members of the MPAA > have collectively deemed DeCSS "unauthorized". > > 2. There may be today, or we may be able to become ourselves, DVD > copyright owners that authorize DeCSS, LiViD, etc. > > 3. Points 1 and 2 are in conflict. If one copyright owner "approves" a > device and another copyright owner does not, who wins? Here's the problem as I see it: Assuming that the person using DeCSS or other functionally similar devices (a) intend to use it for viewing only and (b) bought and paid for the DVD - Does the "authority of the copyright owner" required by 1201(a)(3) take place: (1) at the point of purchase of the DVD; or (2) at the point of purchase of the licensed CSS decryption device (purchasing Xing, buying a stand-alone player, etc)? If the answer is (1), the authorization has already been granted to the bona fide purchaser and user of the DVD, and therefore use of DeCSS does not fall under the "circumvention" definition, barring a tracing of licensing provisions between the MPAA and those it represents, DVD-CCA, the manufacturer of the software/hardware viewers and the end consumer. If the answer is (2), then "authority" is equivalent to the state of having purchased/licensed a DVD-CCA licensed viewer. No authority is present in the use of DeCSS and functionally similar devices. It is important to underline that the statute refers to the authority of "the copyright owner", as opposed to the authority of those who implemented CSS. This suggests that the "authority" is granted at the time of purchase of the DVD itself: it is illogical to say that purchasing/licensing of a software or hardware DVD player grants -in itself- the authority to access each individual copyrighted work that it can be used for. So the proper argument would be one of implied authority as consideration for the money paid for the DVD. We can go back to our hypothetical/mythical 'victim of 1201' to see how this works: A person wants to buy a DVD movie. He is unaware that he will not be able to view it without a licensed player. He runs, say, Linux at home, and has a DVD player computer component. He goes to a video store, and pays money for a DVD. There is no indication on the DVD that there are further restrictions on him other than the statutory provisions not to copy or otherwise violate the rights of the copyright owner. He puts the DVD in the drive, fires up his Linux software (unlicensed) DVD player, and he sees garbage. He is livid (pun) - he has paid consideration for the right to view the player: no other contractual terms were evident on the DVD. But the question is, what -exactly- was the money he paid for the DVD in consideration of? We argue: it was in consideration of an express authority to view the movie. It is a logically necessary step to say that it was therefore an implied authority to decrypt the movie. That is the logically necessary step vis-a-vis -licensed- players, so why not here? Because he had implied authority to decrypt, he was not 'circumventing' under 1201(a)(3)(A). Problem: succeeding in this argument requires a legal analysis of the transfer and licensing of rights that pass from the copyright owner, to DVD-CCA, to the manufacturer of the licensed viewer, to the consumer. It would be interesting to see how the legal relationships are structured, by my instinct is that 'authority to decrypt' passes to the consumer NOT by virtue of the license of the player, but by virtue of the implied or express license granted at the point of purchase of the DVD. Note what else this argument does: So far, the above describes an individual doing the circumventing, and is thus a proper argument for a future defendant in a 1201(a)(1) case. BUT, because the above establishes that a bona fide purchaser and viewer of a DVD using non-licensed players falls outside of the 'circumvention' definition in 1201(a)(3)(A), the "primary purpose" of the device - regardless of the three particular defendants - is no longer circumvention. Thus the device itself falls outside of the "primary purpose is for circumvention of an access-control device" prohibition in 1201(a)(2), which obviously speaks directly to our case. I really, really like this argument, as it does not rely on constitutional grounds, fair use, and other more difficult avenues of approach discussed here. Like the RE exception, it fits directly within the statute as it stands, and weakens its practical application to any real-world situation. (i.e: devices that are -truly- aimed at piracy will be caught under the more justifiable prohibition in 1201(b): over-reaching plaintiffs who want to use 1201(a)(2) to sue people who have already paid them money to view their movies will find that they have given them the requisite 'authority'.) Any thoughts? -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 11:51:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11136 for dvd-discuss-outgoing; Sat, 4 Mar 2000 11:51:33 -0500 Received: from dial164.roadrunner.com (dial164.cybermesa.com [209.12.75.164]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA11133 for ; Sat, 4 Mar 2000 11:51:30 -0500 Received: (from paul@localhost) by dial164.roadrunner.com (8.8.7/8.8.7) id LAA01680 for dvd-discuss@eon.law.harvard.edu; Sat, 4 Mar 2000 11:07:26 -0700 Date: Sat, 4 Mar 2000 11:07:25 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Patents: proposed FAQ entry Message-ID: <20000304110724.A1671@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu 1. Is CSS patented? U.S. Patent 6,009,171 for "Apparatus, method and computer program product for protecting copyright data within a computer system" describes part of the CSS algorithm and was issued in December 1999. [Ref: Date: Wed, 23 Feb 2000 12:30:14 -0500 Subject: [dvd-discuss] Patent issues ] 2. Doesn't this patent make DeCSS illegal in the U.S.? The answer to that question is unclear. As far as the NY lawsuit is concerned, no allegation of patent infringement has been made so far. This may be a matter of timing (the patent was issued in December 1999). Even if the plaintiffs do sue for patent infringement, the outcome and patent-related status of DeCSS are unclear for three reasons. First, there are questions about whether or not, and how far, a patent may be used to "interfere with" copyright. In U.S. v. Paramount 334 U.S. 131 (1948) the U.S. Supreme Court found that "block licensing" was illegal tying under anti-trust law. It is possible that the courts will find that patented access control schemes may not be used to achieve something copyright law does not permit. In concrete terms, a patent on CSS might allow the MPAA members to use their near-monopoly in copyrighted movies to achieve a monopoly in, or restrain trade in, play-back devices. Some choice quotes from the decision show the court's reasonsing: "For a copyright may no more be used than a patent to deter competition between rivals in the exploitation of their licenses." "That enlargement of the monopoly of the copyright was condemned below in reliance on the principle which forbids the owner of a patent to condition its use on the purchase or use of patented or unpatented materials." [Ref: Date: Thu, 17 Feb 2000 09:30:34 -0800 (PST) Subject: Re: [dvd-discuss] MPAA cannot hide behind DMCA to create antitrust violations Date: Wed, 23 Feb 2000 14:38:59 -0800 (PST) Subject: [dvd-discuss] Patent issues ] Second, no one has made a specific announcement on dvd-discuss of whether they believe DeCSS violates the patent or not, and how they reached this conclusion. Third, there is speculation that U.S. patent 6,009,171 may be invalid, but no one on dvd-discuss is hanging their hat on this point yet. [Ref: Date: Mon, 28 Feb 2000 07:49:33 -0800 (PST) Subject: Re: [dvd-discuss] First Amendment Limits To Copyright http://eon.law.harvard.edu/archive/dvd-discuss/msg00839.html ] There are probably Japanese patents too, but dvd-discuss participants have not bothered to track them down as it is not clear that they have relevance to a U.S. court case, and some of the more directly related questions are still unanswered. From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 12:18:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14531 for dvd-discuss-outgoing; Sat, 4 Mar 2000 12:18:08 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14528 for ; Sat, 4 Mar 2000 12:18:07 -0500 Received: from [38.32.79.212] (helo=ip212.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RJKN-0005mM-00; Sat, 4 Mar 2000 13:31:00 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] tech issues #3 Date: Sat, 04 Mar 2000 18:30:04 GMT Message-ID: <38c55614.3996478@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA14529 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [posting some individual threads here to add; correct; fill in the blanks. etc.] >3. What other operating systems are left unsupported by DVDs? *current desktop OS* FreeBSD 3.4: except via LiViD/css-auth Solaris 7/8: native support for UDF, but no DVD-video player SGI IRIX 6.5.6: no native support, but available thru third party apps BeOS 4.5.2: *older desktop OS* DOS 6.x Win 95 Win 3.11 IBM OS/2 *portable/other OS* Sun/IBM Java Media Framework 2.0 Palm OS 3.5 EPOC Release 5 __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 12:18:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14660 for dvd-discuss-outgoing; Sat, 4 Mar 2000 12:18:31 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14657 for ; Sat, 4 Mar 2000 12:18:31 -0500 Received: from [38.32.79.212] (helo=ip212.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RJKl-0005my-00; Sat, 4 Mar 2000 13:31:23 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] tech issues #2 Date: Sat, 04 Mar 2000 18:30:28 GMT Message-ID: <38c6562f.4023194@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA14658 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >2. True or False: It is impossible to fast-forward past commercials or >FBI warnings on DVDs? On Dr. Caligari, I am able to fast forward through the FBI warning. It still appears, but for just 3 or 4 seconds instead of the normal 12 seconds. Of course navigation controls are unique to each title. Supposedly, Disney's Tarzan has 4 minutes of trailers which can't be skipped, but can be fast-forwarded. (http://news.cnet.com/news/0-1007-200-1563949.html?tag=st.ne.1002.tgif?st.ne.fd.gif.k) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 12:22:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15600 for dvd-discuss-outgoing; Sat, 4 Mar 2000 12:22:40 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA15597 for ; Sat, 4 Mar 2000 12:22:39 -0500 Received: from [38.32.79.212] (helo=ip212.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RJOm-0005tp-00; Sat, 4 Mar 2000 13:35:32 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] tech issues #5 Date: Sat, 04 Mar 2000 18:34:37 GMT Message-ID: <38c75646.4046778@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA15598 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >5. Top five myths about DeCSS. What are the top five greatest >misunderstandings about the DeCSS technology and why are they wrong? 1) DeCSS is the first DVD ripper. DeCSS was proceeded by other software that removed CSS: DOD Speed ripper was reportedly the first. Also [ ] 2) DeCSS is a practical threat to DVD. While some have gotten it to work, it will crash and hang many PCs and is probably incompatible with many combinations of ASPI drivers and drives. (ie. Adaptec WNASPI32.dll 4.60 and Toshiba SD-M1212) 3) DeCSS can produce a copy of a DVD. DeCSS, when it does work, only allows the user to extract unencrypted VOB files, which lack the program and navigation elements of the original DVD title. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 12:45:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20047 for dvd-discuss-outgoing; Sat, 4 Mar 2000 12:45:15 -0500 Received: from dial160.roadrunner.com (dial160.cybermesa.com [209.12.75.160]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20044 for ; Sat, 4 Mar 2000 12:45:10 -0500 Received: (from paul@localhost) by dial160.roadrunner.com (8.8.7/8.8.7) id MAA01894 for dvd-discuss@eon.law.harvard.edu; Sat, 4 Mar 2000 12:01:06 -0700 Date: Sat, 4 Mar 2000 12:01:05 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Another way of seeing it... Message-ID: <20000304120104.A1754@localhost> References: <20000303145916.A17823@thud.reric.net> <38C14ECA.8FE92D5B@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38C14ECA.8FE92D5B@sympatico.ca>; from ian.hay@sympatico.ca on Sat, Mar 04, 2000 at 12:58:34PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu n Sat, Mar 04, 2000 at 12:58:34PM -0500, Ian Hay wrote: > Eric Seppanen wrote: > > > > Has the idea of "authorization" already been dismissed as a dead end? If > > so, why? It seems to me to be a very valid concern with 17 USC 1201 in > > general. > > Not at all, in my opinion - I think a really stimulating issue is raised > here... > > > Here's the problem as I see it: > > > > 1. 1201(a)(3)(A) defines circumvention as removing technological measures > > "without the authority of the copyright owner". The members of the MPAA > > have collectively deemed DeCSS "unauthorized". > > > > 2. There may be today, or we may be able to become ourselves, DVD > > copyright owners that authorize DeCSS, LiViD, etc. > > > > 3. Points 1 and 2 are in conflict. If one copyright owner "approves" a > > device and another copyright owner does not, who wins? > > Here's the problem as I see it: > > Assuming that the person using DeCSS or other functionally similar > devices (a) intend to use it for viewing only and (b) bought and paid > for the DVD - Does the "authority of the copyright owner" required by > 1201(a)(3) take place: > > (1) at the point of purchase of the DVD; or > (2) at the point of purchase of the licensed CSS decryption device > (purchasing Xing, buying a stand-alone player, etc)? > > If the answer is (1), the authorization has already been granted to the > bona fide purchaser and user of the DVD, and therefore use of DeCSS does > not fall under the "circumvention" definition, barring a tracing of > licensing provisions between the MPAA and those it represents, DVD-CCA, > the manufacturer of the software/hardware viewers and the end consumer. > > If the answer is (2), then "authority" is equivalent to the state of > having purchased/licensed a DVD-CCA licensed viewer. No authority is > present in the use of DeCSS and functionally similar devices. > > It is important to underline that the statute refers to the authority of > "the copyright owner", as opposed to the authority of those who > implemented CSS. This suggests that the "authority" is granted at the > time of purchase of the DVD itself: it is illogical to say that > purchasing/licensing of a software or hardware DVD player grants -in > itself- the authority to access each individual copyrighted work that it > can be used for. > > So the proper argument would be one of implied authority as > consideration for the money paid for the DVD. We can go back to our > hypothetical/mythical 'victim of 1201' to see how this works: A person > wants to buy a DVD movie. He is unaware that he will not be able to > view it without a licensed player. He runs, say, Linux at home, and has > a DVD player computer component. He goes to a video store, and pays > money for a DVD. There is no indication on the DVD that there are > further restrictions on him other than the statutory provisions not to > copy or otherwise violate the rights of the copyright owner. He puts > the DVD in the drive, fires up his Linux software (unlicensed) DVD > player, and he sees garbage. > > He is livid (pun) - he has paid consideration for the right to view the > player: no other contractual terms were evident on the DVD. But the > question is, what -exactly- was the money he paid for the DVD in > consideration of? > > We argue: it was in consideration of an express authority to view the > movie. It is a logically necessary step to say that it was therefore an > implied authority to decrypt the movie. That is the logically necessary > step vis-a-vis -licensed- players, so why not here? Because he had > implied authority to decrypt, he was not 'circumventing' under > 1201(a)(3)(A). > > Problem: succeeding in this argument requires a legal analysis of the > transfer and licensing of rights that pass from the copyright owner, to > DVD-CCA, to the manufacturer of the licensed viewer, to the consumer. > It would be interesting to see how the legal relationships are > structured, by my instinct is that 'authority to decrypt' passes to the > consumer NOT by virtue of the license of the player, but by virtue of > the implied or express license granted at the point of purchase of the > DVD. > > Note what else this argument does: So far, the above describes an > individual doing the circumventing, and is thus a proper argument for a > future defendant in a 1201(a)(1) case. BUT, because the above > establishes that a bona fide purchaser and viewer of a DVD using > non-licensed players falls outside of the 'circumvention' definition in > 1201(a)(3)(A), the "primary purpose" of the device - regardless of the > three particular defendants - is no longer circumvention. Thus the > device itself falls outside of the "primary purpose is for circumvention > of an access-control device" prohibition in 1201(a)(2), which obviously > speaks directly to our case. > > I really, really like this argument, as it does not rely on > constitutional grounds, fair use, and other more difficult avenues of > approach discussed here. Like the RE exception, it fits directly within > the statute as it stands, and weakens its practical application to any > real-world situation. (i.e: devices that are -truly- aimed at piracy > will be caught under the more justifiable prohibition in 1201(b): > over-reaching plaintiffs who want to use 1201(a)(2) to sue people who > have already paid them money to view their movies will find that they > have given them the requisite 'authority'.) > > Any thoughts? It weakens the application to any real-world situation that involves first sale. 1201(a) might still make sense in terms of streaming video. This line of reasoning runs into a problem though, because (a)(2) doesn't make a distinction between trafficking in devices to circumvent streaming video and video off a DVD. A few days ago I realized that in one sense 17USC1201 isn't new at all. I think it has been illegal to "circumvent" encryption on cable and broadcast signals for some time, but that is definitely not a copyright-related issue. The damaged party is not the copyright holder, and all the regulated performances are, by definition, public (maybe semi-private too?) and not private. >From this perspective, the new aspects of 1201 are that it makes no distinction between private and public performance, and that the copyright holder, rather than a service provider, is viewed as the injured party. I'll try to get some law on the various types of cable "circumvention". The other issue is that as soon as you start talking about the relationship between the copyright holder, the manufacturer of the player and the licensor of CSS, I think we should bring U.S. v. Paramount 334 U.S. 131 (1948) into the picture: "For a copyright may no more be used than a patent to deter competition between rivals in the exploitation of their licenses." "That enlargement of the monopoly of the copyright was condemned below in reliance on the principle which forbids the owner of a patent to condition its use on the purchase or use of patented or unpatented materials." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 12:56:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA21926 for dvd-discuss-outgoing; Sat, 4 Mar 2000 12:56:18 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA21921 for ; Sat, 4 Mar 2000 12:56:18 -0500 Received: from [38.32.79.212] (helo=ip212.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RJvK-0007CW-00; Sat, 4 Mar 2000 14:09:10 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] tech issues #1 Date: Sat, 04 Mar 2000 19:08:13 GMT Message-ID: <38c8573f.4295903@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA21924 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >1. Region Coding. How does region coding prevent playback? What are >the different ways to bypass this technological measure and how easy are >they to accomplish? Are there DVDs that are coded to play in all >regions? Region coding is one bit on the disc, which the player checks. Region coding can be overcome by: [in players] 1) changing the region in the player's setup menu (a limited number of times is allowed in most drives/players.) Recently, more DVD players have become available that are region switchable through their setup menu.ie: Apex AD-600A 2) a custom chip can be added to players (as at http://www.codefreedvd.com/ ) 3) One early Sony player [____] had a dip switch to select regions. [in dvd-rom] 3) software can switch zones on some DVD-ROM drives (http://www.inmatrix.com/files/dvdgenie_download.html ; http://www.eurosat.com/visualdomain/remoteselector141.zip ; http://dspace.dial.pipex.com/town/plaza/acu53/tpzone.zip ) A list of regionless DVD-ROM drives is at: http://www.inmatrix.com/drives.html Some DVD tiles are considered Region #0 and will play in any player. There are lists of past and current releases here: http://www.dvd-daily.com/issues/ __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 13:16:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24996 for dvd-discuss-outgoing; Sat, 4 Mar 2000 13:16:49 -0500 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24993 for ; Sat, 4 Mar 2000 13:16:49 -0500 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id OAA17728; Sat, 4 Mar 2000 14:29:41 -0500 Date: Sat, 4 Mar 2000 14:29:41 -0500 From: Jim Bauer Message-Id: <200003041929.OAA17728@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] research questions - request for memos Newsgroups: local.dvd-discuss In-Reply-To: <38BF8D17.2CE051C9@eff.org> References: <200003020433.UAA16928@ns1.filetron.com> <000001bf84c4$a9a3bd40$547945ce@bugbug.WinNATDomain> <20000302215858.A13379@cty-alum.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <38BF8D17.2CE051C9@eff.org> you write: >Hello folks: > >I have some specific questions that we need looked into and was hoping >this list could take them on. > >TECH ISSUES: > >3. What other operating systems are left unsupported by DVDs? Are you asking about DVDs in general or CSS encoded DVDs? Wouldn't it be easier to identify the OSes that *do* have support for DVDs? Isn't there only a couple (Windows, MacOS, ???) that have the "authorized" ability to use CSS DVDs? Subtract that from the 100s of operating systems in existence. How are you defining an "operating system"? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 15:41:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28498 for dvd-discuss-outgoing; Sat, 4 Mar 2000 15:41:59 -0500 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA28495 for ; Sat, 4 Mar 2000 15:41:58 -0500 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA04285 for ; Sat, 4 Mar 2000 16:54:51 -0500 (EST) Date: Sat, 4 Mar 2000 16:54:51 -0500 (EST) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] tech issues #1 In-Reply-To: <38c8573f.4295903@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 4 Mar 2000, Ron Gustavson wrote: > > >1. Region Coding. How does region coding prevent playback? What are > >the different ways to bypass this technological measure and how easy are > >they to accomplish? Are there DVDs that are coded to play in all > >regions? > > Region coding is one bit on the disc, which the player checks. > > Region coding can be overcome by: > > [in players] > > 1) changing the region in the player's setup menu (a limited number of times is > allowed in most drives/players.) Recently, more DVD players have become > available that are region switchable through their setup menu.ie: Apex AD-600A The DVD forum currently requires that DVD drives sold after Dec 31, 1999 implement Region Protection Control in Hardware. I'm not sure what the specs are, but I believe the region control can be set a maximum of five times by the consumer, and this maximum can be reset up to 4 times by a lisenced service provider. see: http://www.aopenusa.com/tech/faq/dvd/general.htm http://www.microsoft.com/hwdev/DVD/DVDregion.htm also see the dvd faq: http://www.dvddemystified.com/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 17:11:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18912 for dvd-discuss-outgoing; Sat, 4 Mar 2000 17:11:33 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA18909 for ; Sat, 4 Mar 2000 17:11:32 -0500 Received: from [38.32.11.190] (helo=ip190.bedford3.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RNuL-00056d-00; Sat, 4 Mar 2000 18:24:25 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] tech issues #3 Date: Sat, 04 Mar 2000 23:23:11 GMT Message-ID: <38cc9980.21259394@mail.tiac.net> References: <38c55614.3996478@mail.tiac.net> In-Reply-To: <38c55614.3996478@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id RAA18910 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Bauer wrote: >>TECH ISSUES: >> >>3. What other operating systems are left unsupported by DVDs? > >Are you asking about DVDs in general or CSS encoded DVDs? >Wouldn't it be easier to identify the OSes that *do* have support >for DVDs? Isn't there only a couple (Windows, MacOS, ???) that have Windows 2000 Windows 98 Windows CE MacOS 8.1+ >the "authorized" ability to use CSS DVDs? Subtract that from the >100s of operating systems in existence. How are you defining an >"operating system"? I don't know which is the better tack. Listing the OSes where DVD is not native shows the hoops some licensed users have to jump through. SGI is a relevation--the fact that Daikin's Scenarist runs on SGI, and that SGI is a fixture throughout Hollywood; but that it lacks native UDF support is noteworthy. >>3. What other operating systems are left unsupported by DVDs? > >*current desktop OS* > >FreeBSD 3.4: except via LiViD/css-auth > >Solaris 7/8: native support for UDF, but no DVD-video player > >SGI IRIX 6.5.6: no native support, but available thru third party apps > >BeOS 4.5.2: > >*older desktop OS* > >DOS 6.x > >Win 95 > >Win 3.11 > >IBM OS/2 > >*portable/other OS* > >Sun/IBM Java Media Framework 2.0 > >Palm OS 3.5 > >EPOC Release 5 __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 17:54:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26110 for dvd-discuss-outgoing; Sat, 4 Mar 2000 17:54:00 -0500 Received: from dial244.roadrunner.com (dial244.cybermesa.com [209.12.75.244]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA26107 for ; Sat, 4 Mar 2000 17:53:58 -0500 Received: (from paul@localhost) by dial244.roadrunner.com (8.8.7/8.8.7) id RAA02800 for dvd-discuss@eon.law.harvard.edu; Sat, 4 Mar 2000 17:09:59 -0700 Date: Sat, 4 Mar 2000 17:09:58 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] tech issues #1 Message-ID: <20000304170957.A2683@localhost> References: <38c8573f.4295903@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38c8573f.4295903@mail.tiac.net>; from rongus@tiac.net on Sat, Mar 04, 2000 at 07:08:13PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 04, 2000 at 07:08:13PM +0000, Ron Gustavson wrote: > Region coding is one bit on the disc, which the player checks. ^^^ A minor tweak, from : Discs without codes will play on any player in any country. It's not an encryption system, it's just one byte of information on the disc that the player checks. ^^^^ Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10592 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:04 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10583 for ; Sat, 4 Mar 2000 19:21:03 -0500 Received: (qmail 2744 invoked by uid 502); 4 Mar 2000 02:25:55 -0000 Date: Fri, 3 Mar 2000 21:25:55 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000303212555.E915@linuxpower.org> References: <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <38BEDA71.1ED7D7A0@cdpage.com> <20000302181259.F5222@linuxpower.org> <20000302210332.A11408@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000302210332.A11408@duskglow.com>; from Russell Miller on Thu, Mar 02, 2000 at 09:03:32PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 02, 2000 at 09:03:32PM -0800, Russell Miller wrote: > But you know something? We ARE "playing law". None of us have had any formal > training in it and it's unreasonable to expect us to behave like lawyers. > This reminds me a little bit of MS... don't provide the tools to do the > job then tsktsktsk when we can't build things as "good" as they can. (on the > MS platform). This isn't the issue at all. A closer analogy would be if we as techies got together and started discussing neurosurgery, trying to come up with an operation strategy to save the life of someone important. In this scenario, the "real" surgeons are seriously listening to us because they think we have something important to say. If established neurosurgeons start offering their advice, we should realize that their experience - not to mention their education - puts them in a different ballfield than us. That's not elitism. That's simple fact. Coming up with an operation strategy based on popular moderation, incidentally, would virtually guarantee the death of the patient. I've read others on this list spouting the idea that it's all just paper-based elitism. It isn't. That's not to say, however, that we're not capable of coming up with a good idea or two once in a while. :) > Just like lawyers and legislators are "playing techies". I mean, come on. > They have no more understanding of the issues that they're dealing with > technically, or the "hacker culture", than we do about the law or their > culture. Ruling upon ruling proves that. But they're trying to make policies > that affect all of us. Some may be more clued in than others, just like > some of us are more clued in legally than others. But the end results are the same. > If one is not careful than they can cause as much damage as we can. They are > not above reproach. This can't be a nice thing to hear for a lawyer, I know > that, but that's why we're here. We want to help. Of course we do. I know I do. I don't think any of us would still be here if this wasn't the case. But the fact remains, we're playing in their field. > All we can bring to the table is immense computing resources, lots of energy > and time, and the ability to research and try to distill and refine things to > the best of our ability. Which has to be worth something... It's worth everything. It doesn't mean, however, that it can replace years of in-court experience or an in-depth understanding of *why* the law is what it is, versus simply what it is. I'm not trying to discourage people here. But I think it's important to accept that ten techies do not a lawyer make. We need to find a way to bring trained and experienced attorneys into this discussion. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10588 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:04 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10573 for ; Sat, 4 Mar 2000 19:21:01 -0500 Received: (qmail 2738 invoked by uid 502); 4 Mar 2000 02:14:39 -0000 Date: Fri, 3 Mar 2000 21:14:39 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Message-ID: <20000303211439.D915@linuxpower.org> References: <20000303145916.A17823@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000303145916.A17823@thud.reric.net>; from Eric Seppanen on Fri, Mar 03, 2000 at 02:59:16PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 02:59:16PM -0600, Eric Seppanen wrote: > Has the idea of "authorization" already been dismissed as a dead end? If > so, why? It seems to me to be a very valid concern with 17 USC 1201 in > general. Personally, I think the "authority" question is a very big hole, if exploited right. We would need to build a logical foundation for the argument that "authority" is a more complicated issue than simply a copyright owner giving their okey-dokey. If anything, "authority" sounds like a term of limit, sort of a place where 1201 runs out. It might make a good place to start building a case that limitations to 1201 apply - use the fact that 1201 hasn't been tested in court before to our own advantage. I know that didn't make sense. More Monday. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10587 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:03 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10574 for ; Sat, 4 Mar 2000 19:21:01 -0500 Received: (qmail 2732 invoked by uid 502); 4 Mar 2000 02:08:20 -0000 Date: Fri, 3 Mar 2000 21:08:20 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000303210820.C915@linuxpower.org> References: <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302003033.S23265@linuxpower.org> <000001bf844d$e09e9260$f87945ce@bugbug.WinNATDomain> <20000302125528.A5222@linuxpower.org> <4.2.2.20000302154138.00b37100@law.harvard.edu> <20000303103818.A11320@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000303103818.A11320@localhost>; from Paul Fenimore on Fri, Mar 03, 2000 at 10:38:19AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 10:38:19AM -0700, Paul Fenimore wrote: > On Thu, Mar 02, 2000 at 10:10:03PM -0500, Wendy Seltzer wrote: > > In the flood of messages, it's easy to forget that we have covered a > > considerable distance -- it's getting harder to continue because we have > > weeded out lots of the simplistic arguments. As a complement to the FAQ, > > which lists questions we've asked and answered (even if the answers are not > > yet etched in stone), I'm trying to put together a list of unanswered > > questions, legal or technical, whose answers might advance the arguments. > > > > Would it then make sense to create separate sub-lists for discussion of > > individual points? Would people join lists/groups to research specific > > questions and then reach a group consensus to add back to the whole list? > > 1. Once the participants in a thread either reach a conclusion or an > impass, they should try to hammer out a concise (if possible) statement > of the thread's results, and include the necessary references and urls > and headers to particular messages on dvd-discuss. If that circulates > as a "draft" on dvd-discuss for a while, that's fine. But at some point, > it needs to get put up on a web-site, or in the faq with full references, > so that people can have a centralized place to look at them, without > wading throught the full volume of dvd-discuss. A certain amount of this > has been going on already, but I see two flaw with the current process. > At the end of a lengthy discussion, folks are tired and don't feel like > making a concluding statment, and if they do, it is buried in 1000+ > messages of dvd-discuss. This is basically what I'm trying to do with the FAQ. The idea is that none of these issues is really concluded, only not being discussed at the moment. As we discuss issues more, more information surfaces, and that information almost invariably changes the "conclusion". The best we can achieve is a sort of moving target, a development snapshot of where we are at now. We need to be extremely cautious in regards to "conclusions"; we need to remember that it's not our place to make conclusions - it's the courts. When we start concluding, we stop producing new material. > > I've included a reasonable draft conclusion below. > > 2. I think splitting dvd-discuss along the lines of discussion threads > is a bad idea. On one hand, if people (continue to) make a modest effort > to keep a discussion on-topic, then threading and subject lines allow one > to segregate the various thought-trains. On the other hand, splitting > dvd-discuss does two things. First, it doesn't actually lower the volume > of discussion. Second, it is adding a mechanism that people already have > available to them: private e-mail. After thinking on this a bit, I would tend to agree. I think all it would do is fragment the list, creating multiple public forums, while not solving the problem of lawyers making public statements that could come back to haunt them. If they want to participate publicly, great; if they want to participate offline, they can do that too. I don't think there's too much point to splitting up the list into separate lists. In the end, you'd just have techies and lawyers going in opposite directions. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10589 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:03 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10576 for ; Sat, 4 Mar 2000 19:21:01 -0500 Received: (qmail 2770 invoked by uid 502); 4 Mar 2000 02:53:50 -0000 Date: Fri, 3 Mar 2000 21:53:50 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Message-ID: <20000303215350.G915@linuxpower.org> References: <20000303145916.A17823@thud.reric.net> <20000303185151.A12707@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000303185151.A12707@localhost>; from Paul Fenimore on Fri, Mar 03, 2000 at 06:51:52PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 06:51:52PM -0700, Paul Fenimore wrote: > > The 28 Feb. version of the FAQ only defines authority, even though > more is known than that. > > I think that a clear summary of the progress made so far on > "authorization," and the status of outstanding questions > would be useful. Actually, the current cut (2/28/2000) of the FAQ says this: "3.18) What is the legal definition of "authority" as used in 1201(a)(3)(B)? Surprisingly enough, 17 USC 101 (Definitions) does not define the term "authority" in reference to any of the sections of Title 17." I think the fact that we *haven't* found a cut and dry definition leaves this open to some interpretation and argument. We ran around in circles on this, and never really reached any hard consensus. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10586 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:03 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10575 for ; Sat, 4 Mar 2000 19:21:01 -0500 Received: (qmail 2681 invoked by uid 502); 4 Mar 2000 01:50:21 -0000 Date: Fri, 3 Mar 2000 20:50:21 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000303205021.A915@linuxpower.org> References: <20000302174031.L8922@duskglow.com> <20000303002708.E11408@duskglow.com> <38BFD5F4.707DB0A7@bigbrother.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38BFD5F4.707DB0A7@bigbrother.net>; from Steve Stearns on Fri, Mar 03, 2000 at 09:10:45AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 09:10:45AM -0600, Steve Stearns wrote: > > And I was referring to something targeted directly at people coming to this > > list from a "law culture". Something to ease the culture clash. Why do we > > post 80 posts full of garbage for every few gems? Why do we dive head- > > first into problems expecting to solve them? Why has this benefited us? > > Maybe it's not doable. I don't know. > > I belive that it is quite doable. I'm sure that a number of people on this > list are both a Lawyer and a Techie and understand both realms well. Now if > they just have the skills as a writer and the desire to do so, we may have a > winner. Other than that I'm sure each one of us who have a passion about this > issue can sit down and write something about why we feel it is important. > Probably not something to send out to the list en masse, but putting together > some of these essays on a website might be nice. I've been approached recently with the idea of hosting the FAQ on it's own domain, as well as on the Harvard OpenLaw site. It looks like it's going to happen; we can easily host a section on the site dedicated to the "OpenLaw Papers" - essays, sub-FAQ's, "findings of fact", miscellaneous hallucinations, whatever. :) Seriously, though, I'll go with what the group decides here. But I think that this would be a good way to get "consensus" ideas presented that doesn't involve Slashdot-style moderation (*shiver*) or "findings of fact" that amount to little more than the "10 most popular thoughts" on this list. Anyone who participates in the list can post a "paper", and then we can blast away at it; at the same time we can make it clear that the papers represent the opinions of the individual authors and do not necessarily represent the group as a whole. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 19:21:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10596 for dvd-discuss-outgoing; Sat, 4 Mar 2000 19:21:07 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc249.tampabay.rr.com [24.26.88.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA10593 for ; Sat, 4 Mar 2000 19:21:06 -0500 Received: (qmail 2728 invoked by uid 502); 4 Mar 2000 02:02:01 -0000 Date: Fri, 3 Mar 2000 21:02:01 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000303210201.B915@linuxpower.org> References: <20000303160302.24872.qmail@web506.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000303160302.24872.qmail@web506.mail.yahoo.com>; from Bryan Taylor on Fri, Mar 03, 2000 at 08:03:02AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 03, 2000 at 08:03:02AM -0800, Bryan Taylor wrote: > > > > --- Steven Barker wrote: > > > [...] Note the distiction between the analyzed program, the > > > independently created program, and the other programs. The point is > > > you replace a program with another and preserve interoperation. > > > > What program are you replacing though? The language you quote > > suggests that the replacement is of the "analyzed program" that is > > protected by encryption. Using DeCSS allows the replacement of one > > of the "other programs", namely the player. > > DeCSS is a piece of a replacement for the player, eg XingDVD, which is > the "analyzed program". There are several choices for the "other > program": the movie specific interface program on the DVD, and/or the > authoring program both exchange information with XingDVD, which is > being replaced by LiViD and/or DeCSS + an MPEG2 player. Something needs to be said here that is *REAL* important. One of Robin's questions is regarding the "Myths of DeCSS", and Bryan, part of what you are saying here is one of them. We can't let the attorneys go into court thinking that it's true. "DeCSS" - the Windows executable written by Jon Johansen, the subject of the current court case in New York - is no more a "component in a Linux video player" than it is a "DVD copier", and for the same reasons. This program does one thing and one thing only - it descrambles CSS. The use to which you put the decrypted stream is completely arbitrary to the function and design of the program. If we claim different, that the purpose of DeCSS is to be part of a Linux video player, then the MPAA can just as accurately say that it's a DVD copier. Now before you start jumping onto the "but css-auth is part of LiViD!" bandwagon, DeCSS is *not* css-auth. To the best of my knowledge, css-auth was not incorporated into DeCSS; css-auth was more the grandchild of DeCSS. css-auth is part of a Linux video player; DeCSS is not. Was DeCSS built for the purpose of advancing towards a Linux video player? We believe so. Was it a "proof of concept" program for descrambling CSS? Since we can't show otherwise, sounds good to me. But let's please put the "DeCSS is part of a Linux video player" myth to rest once and for all, before someone's eye gets poked out in court. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 20:15:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18104 for dvd-discuss-outgoing; Sat, 4 Mar 2000 20:15:23 -0500 Received: from draco.tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA17476 for ; Sat, 4 Mar 2000 20:09:11 -0500 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 12RMoF-00007L-00 for ; Sat, 04 Mar 2000 16:14:03 -0600 Date: Sat, 4 Mar 2000 16:14:02 -0600 (CST) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] No Licensed DVD for platform X In-Reply-To: <38cc9980.21259394@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I would be very careful with the "No licensed dvd players exist for platform X" argument. If you give them only any reason other than freedom for your actions, they will just take your reason away... "Here's your Linux DVD player software - (only $999) now stop reverse-engineering our technology"... Next thing you know, Audio DVD's come out and we are back where we started. There will be licensed players for non-mainstream operating systems soon enough. I have heard that there is now a CSS licensee charging for linux DVD software (binary only). Also, ATI is now providing DVD playing software for their graphics cards (for Linux - open source with the CSS stuff removed as per their NDA). Fighting this battle will loose us the war. Focus on our desire and right to create our own DVD player independant of restrictions placed on the "official" CSS licensees. This right is granted to us by the "For home viewing only" right that came with your DVD movie. For example, even if the Linux community did purchase a CSS license, doing so would require an NDA that would prevent distribution of source code (which is unacceptable to our community or our development methods). Freeing "the end result" is not the same as freeing "the process". In this case, the process is far more important. If your defence is based on the end result, the MPAA will just provide a DVD player for Linux (or point to one that exists), and the Linux community's right to reverse-engineer remains in danger. This is one of those "Short term fix", "Long term fix" things. Let's fix this problem for good, or we will be in the same situation again. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "If you don't have the freedom to use what you / ' ) ) own - then you do not own anything." / o ______ / / _ . . No apologies to Jack Valenti or the MPAA / <_/ / / < / (_ Jim Bauer wrote: > > >>TECH ISSUES: > >> > >>3. What other operating systems are left unsupported by DVDs? > > > >Are you asking about DVDs in general or CSS encoded DVDs? > >Wouldn't it be easier to identify the OSes that *do* have support > >for DVDs? Isn't there only a couple (Windows, MacOS, ???) that have > > Windows 2000 > Windows 98 > Windows CE > MacOS 8.1+ > > >the "authorized" ability to use CSS DVDs? Subtract that from the > >100s of operating systems in existence. How are you defining an > >"operating system"? > > I don't know which is the better tack. > Listing the OSes where DVD is not native shows > the hoops some licensed users have to jump through. > > SGI is a relevation--the fact that Daikin's Scenarist runs on > SGI, and that SGI is a fixture throughout Hollywood; but that > it lacks native UDF support is noteworthy. > > > >>3. What other operating systems are left unsupported by DVDs? > > > >*current desktop OS* > > > >FreeBSD 3.4: except via LiViD/css-auth > > > >Solaris 7/8: native support for UDF, but no DVD-video player > > > >SGI IRIX 6.5.6: no native support, but available thru third party apps > > > >BeOS 4.5.2: > > > >*older desktop OS* > > > >DOS 6.x > > > >Win 95 > > > >Win 3.11 > > > >IBM OS/2 > > > >*portable/other OS* > > > >Sun/IBM Java Media Framework 2.0 > > > >Palm OS 3.5 > > > >EPOC Release 5 > > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 20:46:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22648 for dvd-discuss-outgoing; Sat, 4 Mar 2000 20:46:02 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22645 for ; Sat, 4 Mar 2000 20:46:01 -0500 Received: from bugbug (max01-59.suba.com [206.69.121.251]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA01684 for ; Sat, 4 Mar 2000 20:58:52 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Taking a break Date: Sat, 4 Mar 2000 20:57:55 -0600 Message-ID: <000001bf864e$9ad848e0$fb7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000303205021.A915@linuxpower.org> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Re: hosting on OpenLaw or on a separate domain, would it be a good idea to move the post documents I've made onto that site? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of > greslin@linuxpower.org > Sent: Friday, March 03, 2000 7:50 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Taking a break > > > On Fri, Mar 03, 2000 at 09:10:45AM -0600, Steve Stearns wrote: > > > And I was referring to something targeted directly at people > coming to this > > > list from a "law culture". Something to ease the culture > clash. Why do we > > > post 80 posts full of garbage for every few gems? Why do we > dive head- > > > first into problems expecting to solve them? Why has this > benefited us? > > > Maybe it's not doable. I don't know. > > > > I belive that it is quite doable. I'm sure that a number of > people on this > > list are both a Lawyer and a Techie and understand both realms > well. Now if > > they just have the skills as a writer and the desire to do so, > we may have a > > winner. Other than that I'm sure each one of us who have a > passion about this > > issue can sit down and write something about why we feel it is > important. > > Probably not something to send out to the list en masse, but > putting together > > some of these essays on a website might be nice. > > I've been approached recently with the idea of hosting the FAQ on it's own > domain, as well as on the Harvard OpenLaw site. > > It looks like it's going to happen; we can easily host a section > on the site > dedicated to the "OpenLaw Papers" - essays, sub-FAQ's, "findings of fact", > miscellaneous hallucinations, whatever. :) > > Seriously, though, I'll go with what the group decides here. But > I think that > this would be a good way to get "consensus" ideas presented that > doesn't involve > Slashdot-style moderation (*shiver*) or "findings of fact" that > amount to little > more than the "10 most popular thoughts" on this list. Anyone > who participates > in the list can post a "paper", and then we can blast away at it; > at the same > time we can make it clear that the papers represent the opinions > of the individual > authors and do not necessarily represent the group as a whole. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 21:00:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25817 for dvd-discuss-outgoing; Sat, 4 Mar 2000 21:00:14 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA25814 for ; Sat, 4 Mar 2000 21:00:12 -0500 Received: (qmail 19282 invoked from network); 5 Mar 2000 03:08:41 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 03:08:41 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id TAA10644; Sat, 4 Mar 2000 19:13:08 -0800 Date: Sat, 4 Mar 2000 19:13:08 -0800 Message-Id: <200003050313.TAA10644@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] No Licensed DVD for platform X Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tim Neu wrote: I think we need a separation of powers kind of thing to happen here. There is something wrong when a machine is doing extra work on your player and your disc after you have bought it. As in HDCP high-definition content protection. I'm really not amused. Rares >I would be very careful with the "No licensed dvd players exist for >platform X" argument. > >If you give them only any reason other than freedom for your actions, they >will just take your reason away... "Here's your Linux DVD player software >- (only $999) now stop reverse-engineering our technology"... Next thing >you know, Audio DVD's come out and we are back where we started. > >There will be licensed players for non-mainstream operating systems soon >enough. I have heard that there is now a CSS licensee charging for linux >DVD software (binary only). Also, ATI is now providing DVD playing >software for their graphics cards (for Linux - open source with the CSS >stuff removed as per their NDA). Fighting this battle will loose us the >war. > >Focus on our desire and right to create our own DVD player independant of >restrictions placed on the "official" CSS licensees. This right is >granted to us by the "For home viewing only" right that came with your >DVD movie. > >For example, even if the Linux community did purchase a CSS license, doing >so would require an NDA that would prevent distribution of source code >(which is unacceptable to our community or our development methods). > >Freeing "the end result" is not the same as freeing "the process". In >this case, the process is far more important. If your defence is based >on the end result, the MPAA will just provide a DVD player for Linux (or >point to one that exists), and the Linux community's right to >reverse-engineer remains in danger. > >This is one of those "Short term fix", "Long term fix" things. Let's fix >this problem for good, or we will be in the same situation again. > >=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- >______ _ __ "If you don't have the freedom to use what you > / ' ) ) own - then you do not own anything." > / o ______ / / _ . . No apologies to Jack Valenti or the MPAA >/ <_/ / / < / (_ >On Sat, 4 Mar 2000, Ron Gustavson wrote: > >> Jim Bauer wrote: >> >> >>TECH ISSUES: >> >> >> >>3. What other operating systems are left unsupported by DVDs? >> > >> >Are you asking about DVDs in general or CSS encoded DVDs? >> >Wouldn't it be easier to identify the OSes that *do* have support >> >for DVDs? Isn't there only a couple (Windows, MacOS, ???) that have >> >> Windows 2000 >> Windows 98 >> Windows CE >> MacOS 8.1+ >> >> >the "authorized" ability to use CSS DVDs? Subtract that from the >> >100s of operating systems in existence. How are you defining an >> >"operating system"? >> >> I don't know which is the better tack. >> Listing the OSes where DVD is not native shows >> the hoops some licensed users have to jump through. >> >> SGI is a relevation--the fact that Daikin's Scenarist runs on >> SGI, and that SGI is a fixture throughout Hollywood; but that >> it lacks native UDF support is noteworthy. >> >> >> >>3. What other operating systems are left unsupported by DVDs? >> > >> >*current desktop OS* >> > >> >FreeBSD 3.4: except via LiViD/css-auth >> > >> >Solaris 7/8: native support for UDF, but no DVD-video player >> > >> >SGI IRIX 6.5.6: no native support, but available thru third party apps >> > >> >BeOS 4.5.2: >> > >> >*older desktop OS* >> > >> >DOS 6.x >> > >> >Win 95 >> > >> >Win 3.11 >> > >> >IBM OS/2 >> > >> >*portable/other OS* >> > >> >Sun/IBM Java Media Framework 2.0 >> > >> >Palm OS 3.5 >> > >> >EPOC Release 5 >> >> >> __________no-∞-do__________ >> > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 4 23:00:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14276 for dvd-discuss-outgoing; Sat, 4 Mar 2000 23:00:04 -0500 Received: from tardis.offbeat.home (root@wmelbourne-ubr-c3-186.cfl.rr.com [24.26.104.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA14273 for ; Sat, 4 Mar 2000 23:00:02 -0500 Received: (from jlc@localhost) by tardis.offbeat.home (8.9.3/8.9.3) id AAA01615 for dvd-discuss@eon.law.harvard.edu; Sun, 5 Mar 2000 00:12:13 -0500 Date: Sun, 5 Mar 2000 00:12:13 -0500 From: "John L. Chmielewski" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Encryption of Copyright Material Message-ID: <20000305001213.A1268@tardis.offbeat.home> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've been following the discussions and think that what we really want is to eliminate encryption on copyrighted material. Perhaps we could argue that because DVD movies are copyrighted, fair use is authorized and the copyright is for a limited time. By using encryption, the copyright holder is eliminating fair uses specified in Title 17 Section 107, 108, 112, and securing exclusive rights to their works for an unlimited time - contrary to the Copyright Clause of the Constitution, Art. I, 8, cl. 8. It would be nice, if we could get a class action lawsuit against the MPAA and the DVD-CCA, and force them to eliminate encryption. John From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 02:32:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA07112 for dvd-discuss-outgoing; Sun, 5 Mar 2000 02:32:02 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA07109 for ; Sun, 5 Mar 2000 02:32:01 -0500 Received: from bugbug (max01-33.suba.com [206.69.121.225]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id CAA06856 for ; Sun, 5 Mar 2000 02:44:50 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Encryption of Copyright Material Date: Sun, 5 Mar 2000 02:43:52 -0600 Message-ID: <000001bf867e$ef68fe60$e17945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000305001213.A1268@tardis.offbeat.home> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eliminating encryption on copyrighted material (or on anything else) by making it illegal will never work. The ramifications of such a law would be just as bad as 1201, maybe worse. For example, it would make it more difficult for individuals to use encryption, which would only serve organizations like the NSA when they want to limit our privacy rights in order to make their intelligence jobs easier. Furthermore, encryption does not have anything to do with securing copyright for an unlimited time. According to 1201, it (among other methods) stands as an "effective" measure of prevention of access to a work (and effective means only that "information" has to be applied to gain access to the work, not that the measure is uncircumventable or even reasonably uncircumventable). Fair use is not something which is authorized because a work is copyrighted; nor does the application of the fair use statute hinge in any way on the fact that copyright is held for a limited time. Fair use is a set of factors by which any use of a work can be determined to be non-infringing while copyright is in effect; these factors are nature of the work, nature of the use of the work w/special attention to its commercial dimension, proportion of the work used, and actual effect of the use upon the work's commercial value (or degree of harm). See this site: http://www.iag.net/~aleris/dvdfaq.txt. And, although it may not sound like it in the above paragraphs, welcome. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of John L. > Chmielewski > Sent: Saturday, March 04, 2000 11:12 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Encryption of Copyright Material > > > I've been following the discussions and think that what we > really want is to eliminate encryption on copyrighted material. > Perhaps we could argue that because DVD movies are copyrighted, > fair use is authorized and the copyright is for a limited time. > By using encryption, the copyright holder is eliminating fair > uses specified in Title 17 Section 107, 108, 112, and securing > exclusive rights to their works for an unlimited time - contrary > to the Copyright Clause of the Constitution, Art. I, 8, cl. 8. > > It would be nice, if we could get a class action lawsuit against > the MPAA and the DVD-CCA, and force them to eliminate encryption. > > > > John > From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 10:12:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29295 for dvd-discuss-outgoing; Sun, 5 Mar 2000 10:12:02 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA29292 for ; Sun, 5 Mar 2000 10:12:01 -0500 Received: (qmail 3317 invoked from network); 5 Mar 2000 16:20:41 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 16:20:41 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id IAA30029; Sun, 5 Mar 2000 08:25:06 -0800 Date: Sun, 5 Mar 2000 08:25:06 -0800 Message-Id: <200003051625.IAA30029@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Encryption of Copyright Material Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There's a point it has to stop. HDCP is like buying a house and having to use a key to go to sit down on the toilet. Pretty soon you'll need a key to open your ass >:! I agree it's not about eliminating encryption. But there's a point when a product becomes the property of the buyer. Fair use is a defense but perhaps that's what we get for not keeping up with the shit going on. It could have been a right. Rares sparky wrote: >Eliminating encryption on copyrighted material (or on anything else) by >making it illegal will never work. The ramifications of such a law would be >just as bad as 1201, maybe worse. For example, it would make it more >difficult for individuals to use encryption, which would only serve >organizations like the NSA when they want to limit our privacy rights in >order to make their intelligence jobs easier. > >Furthermore, encryption does not have anything to do with securing copyright >for an unlimited time. According to 1201, it (among other methods) stands as >an "effective" measure of prevention of access to a work (and effective >means only that "information" has to be applied to gain access to the work, >not that the measure is uncircumventable or even reasonably >uncircumventable). > >Fair use is not something which is authorized because a work is copyrighted; >nor does the application of the fair use statute hinge in any way on the >fact that copyright is held for a limited time. Fair use is a set of factors >by which any use of a work can be determined to be non-infringing while >copyright is in effect; these factors are nature of the work, nature of the >use of the work w/special attention to its commercial dimension, proportion >of the work used, and actual effect of the use upon the work's commercial >value (or degree of harm). > >See this site: http://www.iag.net/~aleris/dvdfaq.txt. > >And, although it may not sound like it in the above paragraphs, welcome. > >sparky > > > >> -----Original Message----- >> From: owner-dvd-discuss@eon.law.harvard.edu >> [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of John L. >> Chmielewski >> Sent: Saturday, March 04, 2000 11:12 PM >> To: dvd-discuss@eon.law.harvard.edu >> Subject: [dvd-discuss] Encryption of Copyright Material >> >> >> I've been following the discussions and think that what we >> really want is to eliminate encryption on copyrighted material. >> Perhaps we could argue that because DVD movies are copyrighted, >> fair use is authorized and the copyright is for a limited time. >> By using encryption, the copyright holder is eliminating fair >> uses specified in Title 17 Section 107, 108, 112, and securing >> exclusive rights to their works for an unlimited time - contrary >> to the Copyright Clause of the Constitution, Art. I, 8, cl. 8. >> >> It would be nice, if we could get a class action lawsuit against >> the MPAA and the DVD-CCA, and force them to eliminate encryption. >> >> >> >> John >> > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 12:02:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15812 for dvd-discuss-outgoing; Sun, 5 Mar 2000 12:02:29 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA15809 for ; Sun, 5 Mar 2000 12:02:28 -0500 Received: (qmail 24606 invoked by uid 60001); 5 Mar 2000 18:15:24 -0000 Message-ID: <20000305181524.24605.qmail@web505.mail.yahoo.com> Received: from [24.28.154.65] by web505.mail.yahoo.com; Sun, 05 Mar 2000 10:15:24 PST Date: Sun, 5 Mar 2000 10:15:24 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > On Fri, Mar 03, 2000 at 08:03:02AM -0800, Bryan Taylor wrote: > > DeCSS is a piece of a replacement for the player, eg XingDVD, > > which is the "analyzed program". There are several choices for > > the "other program": the movie specific interface program on > > the DVD, and/or the authoring program both exchange > > information with XingDVD, which is being replaced by > > LiViD and/or DeCSS + an MPEG2 player. > > Something needs to be said here that is *REAL* important. One of > Robin's questions is regarding the "Myths of DeCSS", and Bryan, > part of what you are saying here is one of them. We can't let > the attorneys go into court thinking that it's true. > > "DeCSS" - the Windows executable written by Jon Johansen, the > subject of the current court case in New York - is no more a > "component in a Linux video player" than it is a "DVD copier", > and for the same reasons. This program does one thing and one > thing only - it descrambles CSS. The use to > which you put the decrypted stream is completely arbitrary to the > function and design of the program. If we claim different, that the > purpose of DeCSS is to be part of a Linux video player, then > the MPAA can just as accurately say that it's a DVD copier. First of all, I simply did not say what you allege I said. Second, I don't think you correctly state the matter anyway. The correct myth statement is "DeCSS runs under Linux". Despite your assertions otherwise, DeCSS is in fact part of the LiViD development effort. At the time of it's development, there was no UDF filesystem reader for Linux, so DeCSS was written for windows to leave the decrypted movie on the harddrive, presumably to allow you to switch to Linux and use the LiViD mpeg2 player under development. Johansen was a regular contributor to LiViD and announced DeCSS there, so even though DeCSS runs only on windows, it definitely was part of the LiViD development, and a piece of a cross-platform tool that ultimately plays movies on Linux. Third, it doesn't really matter. The context of engineering is better stated as "open source software" instead of "Linux". The operating system is really irrelevant for qualifying for (f)(2,3,4). There simply is no reason you cannot exchange information across platforms, and the UDF evidence is there justifying the platform switching. Forth, the intent behind DeCSS IS very important, and it is clear that DeCSS was distributed to advance LiViD as a development tool and not to be a DVD pirating tool. Under (a)(2)(A) it is the "designed for ... purpose" that is at stake. Since DeCSS is GPL, it has no commercial purpose at all as required by (a)(2)(B), and it isn't for sale, so it isn't "marketed" under (a)(2)(C). The whole LiViD endeavor is aimed at providing non-commercial playback tools. Fifth, the intent behind DeCSS is important for qualifying for (f)(3), which requires it's distribution be "solely" to advance interoperability. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 12:05:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16236 for dvd-discuss-outgoing; Sun, 5 Mar 2000 12:05:55 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16233 for ; Sun, 5 Mar 2000 12:05:54 -0500 Received: from [38.32.79.233] (helo=ip233.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12Rfc9-0001Pq-00; Sun, 5 Mar 2000 13:18:49 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption of Copyright Material Date: Sun, 05 Mar 2000 18:17:52 GMT Message-ID: <38c4a0c0.13258161@mail.tiac.net> References: <000001bf867e$ef68fe60$e17945ce@bugbug.WinNATDomain> In-Reply-To: <000001bf867e$ef68fe60$e17945ce@bugbug.WinNATDomain> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA16234 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 5 Mar 2000 02:43:52 -0600, "sparky" wrote: >Eliminating encryption on copyrighted material (or on anything else) by >making it illegal will never work. The ramifications of such a law would be >just as bad as 1201, maybe worse. For example, it would make it more >difficult for individuals to use encryption, which would only serve >organizations like the NSA when they want to limit our privacy rights in >order to make their intelligence jobs easier. I'm going to flip-flop here. I've been whining about encryption of copyrighted stuff, but I'm getting over it. I'm pretty satisfied with USC 17 407, which suggests deposit of "two complete copies of the best edition" to the LOC. I would like to see high quality DLT copies of film assets stored in some type of conservancy, if only because the entertainment industry has historically shown itself to be such a poor keeper of its assets. But groups like the American Film Institute seem to do a fine job where they can. Trying to get old Divx players to work will give LOC interns something to do a hundred years hence. I find DVD's marriage to just one approved--and obviously faulty--encryption scheme a bit more unsettling. We should probably support more encryption than less. Even HDCP isn't as bad as it looks. It's only 56-bit and if it makes the cable companies feel more secure, so be it. We're probably better off looking out for our own freedom to use the encryption we need. Also of concern is how access to the LOC will evolve. When commercially-available digital text and media start to account for the lions' share of newly-copyrighted work, how will access be granted? Will the Library become the hundred-year sphinx, promising riches to come, but not to the living, but the unborn? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 12:46:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22399 for dvd-discuss-outgoing; Sun, 5 Mar 2000 12:46:51 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA22396 for ; Sun, 5 Mar 2000 12:46:50 -0500 Received: from bugbug (max01-26.suba.com [206.69.121.218]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id MAA07630 for ; Sun, 5 Mar 2000 12:59:42 -0600 (CST) From: "sparky" To: Subject: RE: RE: [dvd-discuss] Encryption of Copyright Material Date: Sun, 5 Mar 2000 12:58:46 -0600 Message-ID: <000001bf86d4$d58f72c0$da7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <200003051625.IAA30029@ns1.filetron.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Rares Marian > Sent: Sunday, March 05, 2000 10:25 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: RE: [dvd-discuss] Encryption of Copyright Material > > > There's a point it has to stop. HDCP is like buying a house and > having to use a key to go to sit down on the toilet. > > Pretty soon you'll need a key to open your ass >:! > > I agree it's not about eliminating encryption. But there's a > point when a product becomes the property of the buyer. Fair use > is a defense but perhaps that's what we get for not keeping up > with the shit going on. It could have been a right. And I agree that there is a point where a product becomes the property of the buyer. However, fair use (which IS in the law, don't forget, so as close to a right as it is likely to be) is always a matter of interpretation. In general a use is not fair if it defrauds the copyright owner of the fruits of their work, whether of reputation or income - so, in other words, incorrect commercial use. However, even commercial uses have been found to fall under fair use, see http://www.acm.org/usacm/events/policy98/session7.html, where it describes a 1994 fair use case: 1994: Campbell v. Cuff-Rose Music, Inc. The Supreme Court ruled that a rap parody of Roy Orison's song, "Pretty Woman," was a fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work may be different. The touchstone here, of course, is that it is a commercial use which does not defraud the original copyright holder's potential for their own commercial use. This case may be relevant to the trafficking case in NY; but only, I think, if posting DeCSS were a commercial endeavor. It would probably be more relevant to a Linux DVD player created without the MPAA's or DVDCCA's authority/approval; you could defend it as not defrauding the Windows-only players as it is aimed at an entirely different market. Opinions on that anyone? Or, more to the point :) : Anyone care to quickly send a Linux-only player to market, pull the MPAA or whoever into battle, and trounce them soundly? Of course I guess you'd have to get access treated as use for that to work. Workin on it! sparky From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 12:54:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23788 for dvd-discuss-outgoing; Sun, 5 Mar 2000 12:54:39 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA23785 for ; Sun, 5 Mar 2000 12:54:38 -0500 Received: from bugbug (max01-26.suba.com [206.69.121.218]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id NAA07798 for ; Sun, 5 Mar 2000 13:07:31 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Encryption of Copyright Material Date: Sun, 5 Mar 2000 13:06:35 -0600 Message-ID: <000101bf86d5$ece12f80$da7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <38c4a0c0.13258161@mail.tiac.net> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Ron Gustavson > Sent: Sunday, March 05, 2000 12:18 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Encryption of Copyright Material > > > Also of concern is how access to the LOC will evolve. When > commercially-available digital text and media start to account > for the lions' > share of newly-copyrighted work, how will access be granted? Actually this puts in mind a technological access prevention measure which might be legitimate. I could see a library which loaned not copies fixed in media such as paper or compact discs but purely digitally; you'd download the work when you borrowed it. Such a format could have a tech prevention measure which would cause the borrowed copy to expire at the end of your borrowed term. You'd then have to re-borrow it to have access to it again. Such measures could only apply to works not in the public domain (still with copyright in effect), of course. > > Will the Library become the hundred-year sphinx, promising riches to come, > but not to the living, but the unborn? I don't know what story you're referring to here, but sphinxes are cool so I'd love to hear it. :) sparky > > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 12:57:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24038 for dvd-discuss-outgoing; Sun, 5 Mar 2000 12:57:33 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA24035 for ; Sun, 5 Mar 2000 12:57:32 -0500 Received: from sympatico.ca (ppp1297.on.bellglobal.com [206.172.225.145]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id OAA13928 for ; Sun, 5 Mar 2000 14:15:44 -0500 (EST) Message-ID: <38C2B2A4.1D636ECE@sympatico.ca> Date: Sun, 05 Mar 2000 14:16:52 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) References: <20000305181524.24605.qmail@web505.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > Something needs to be said here that is *REAL* important. One of > > Robin's questions is regarding the "Myths of DeCSS", and Bryan, > > part of what you are saying here is one of them. We can't let > > the attorneys go into court thinking that it's true. > > > > "DeCSS" - the Windows executable written by Jon Johansen, the > > subject of the current court case in New York - is no more a > > "component in a Linux video player" than it is a "DVD copier", > > and for the same reasons. This program does one thing and one > > thing only - it descrambles CSS. The use to > > which you put the decrypted stream is completely arbitrary to the > > function and design of the program. If we claim different, that the > > purpose of DeCSS is to be part of a Linux video player, then > > the MPAA can just as accurately say that it's a DVD copier. > > First of all, I simply did not say what you allege I said. > > Second, I don't think you correctly state the matter anyway. The > correct myth statement is "DeCSS runs under Linux". > > Despite your assertions otherwise, DeCSS is in fact part of the LiViD > development effort. At the time of it's development, there was no UDF > filesystem reader for Linux, so DeCSS was written for windows to leave > the decrypted movie on the harddrive, presumably to allow you to switch > to Linux and use the LiViD mpeg2 player under development. Johansen was > a regular contributor to LiViD and announced DeCSS there, so even > though DeCSS runs only on windows, it definitely was part of the LiViD > development, and a piece of a cross-platform tool that ultimately plays > movies on Linux. A look through the October and November livid-dev mailing list archives, in my reading, refutes this entire paragraph. What we see in the mailing list is: Johansen announcing that CSS had been cracked; references to off-list communication of the livid-dev members trying to convince them to release the source; references to Johansen's prior hostility to the idea of releasing the source to the Linux community; Johansen explicitly stating that he doubted the other developers of DeCSS would allow the source to be released to the Linux community; and ultimate release of the source after much stern lecturing by the livid-dev members about the value of open source. In other words: it is complete bullshit to say that it was, at its inception, a part of the LiViD development process. > Forth, the intent behind DeCSS IS very important, and it is clear that > DeCSS was distributed to advance LiViD as a development tool and not to > be a DVD pirating tool. Under (a)(2)(A) it is the "designed for ... > purpose" that is at stake. Since DeCSS is GPL, it has no commercial > purpose at all as required by (a)(2)(B), and it isn't for sale, so it > isn't "marketed" under (a)(2)(C). The whole LiViD endeavor is aimed at > providing non-commercial playback tools. Again, people are free to refute my reading of the livid-dev mailing list, but I just don't think it bears out the above statements about the original purpose of DeCSS. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 13:39:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30687 for dvd-discuss-outgoing; Sun, 5 Mar 2000 13:39:47 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA30684 for ; Sun, 5 Mar 2000 13:39:46 -0500 Received: (qmail 10240 invoked from network); 5 Mar 2000 19:48:31 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 19:48:31 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id LAA13725; Sun, 5 Mar 2000 11:52:55 -0800 Date: Sun, 5 Mar 2000 11:52:55 -0800 Message-Id: <200003051952.LAA13725@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Offtopic RERERERE: [dvd-discuss] Encryption of Copyright Material Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I had a different idea. How about a trilateral deadlock between buyers, distributors, and vendors like the separation of powers in the Constitution. Especially interesting because everyone plays one of those roles during a transaction. The vendors have to buy supplies as well. This would hit them where it counts when dealing with people selling to them. Add to this a transactioners' (consumer doesn't cut it) bill of rights. This could could be used as the back bone to blocking HDCP, passing patient's bill of rights, campaign finance reform, a whole array of fixes to the mess we're dealing with now. That's what needs to go into law yesterday. Rares I post this the list only because I think it puts us in the right frame of mind. Which keeps us from turning this into a lovefest. Leave that for when we put in a bill. Incidentally we do need to outnumber the NCCUSL, the We need to focus on laws and research arguments and our chances to win the war. Maybe we can even settle for losing this case vaguely enough to counter. You know what they say about the first presidential race failure. It's a lesson and a pretty damn good one. Right now a bad law is in the books and is being used against us. sparky wrote: > > >> -----Original Message----- >> From: owner-dvd-discuss@eon.law.harvard.edu >> [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Rares Marian >> Sent: Sunday, March 05, 2000 10:25 AM >> To: dvd-discuss@eon.law.harvard.edu >> Subject: Re: RE: [dvd-discuss] Encryption of Copyright Material >> >> >> There's a point it has to stop. HDCP is like buying a house and >> having to use a key to go to sit down on the toilet. >> >> Pretty soon you'll need a key to open your ass >:! >> >> I agree it's not about eliminating encryption. But there's a >> point when a product becomes the property of the buyer. Fair use >> is a defense but perhaps that's what we get for not keeping up >> with the shit going on. It could have been a right. > >And I agree that there is a point where a product becomes the property of >the buyer. However, fair use (which IS in the law, don't forget, so as close >to a right as it is likely to be) is always a matter of interpretation. In >general a use is not fair if it defrauds the copyright owner of the fruits >of their work, whether of reputation or income - so, in other words, >incorrect commercial use. However, even commercial uses have been found to >fall under fair use, see >http://www.acm.org/usacm/events/policy98/session7.html, where it describes a >1994 fair use case: > > >1994: Campbell v. Cuff-Rose Music, Inc. >The Supreme Court ruled that a rap parody of Roy Orison's song, "Pretty >Woman," was a fair use. The court found that a commercial use could be a >fair use especially when the markets for an original work and a >transformative work may be different. > > >The touchstone here, of course, is that it is a commercial use which does >not defraud the original copyright holder's potential for their own >commercial use. This case may be relevant to the trafficking case in NY; but >only, I think, if posting DeCSS were a commercial endeavor. It would >probably be more relevant to a Linux DVD player created without the MPAA's >or DVDCCA's authority/approval; you could defend it as not defrauding the >Windows-only players as it is aimed at an entirely different market. >Opinions on that anyone? Or, more to the point :) : Anyone care to quickly >send a Linux-only player to market, pull the MPAA or whoever into battle, >and trounce them soundly? Of course I guess you'd have to get access treated >as use for that to work. Workin on it! > >sparky > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 13:43:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31074 for dvd-discuss-outgoing; Sun, 5 Mar 2000 13:43:36 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31071 for ; Sun, 5 Mar 2000 13:43:35 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id OAA04898 for ; Sun, 5 Mar 2000 14:56:30 -0500 (EST) Message-Id: <4.2.2.20000305141036.00b2e930@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sun, 05 Mar 2000 14:56:27 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] authorized? Another way of seeing it... In-Reply-To: <38C14ECA.8FE92D5B@sympatico.ca> References: <20000303145916.A17823@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I like the authorization argument as well. If successful, it says that DeCSS no longer exists primarily to circumvent, but to permit full enjoyment of authorized viewing rights. At 12:58 PM 3/4/00 -0500, ian.hay@sympatico.ca wrote: [...] >Assuming that the person using DeCSS or other functionally similar >devices (a) intend to use it for viewing only and (b) bought and paid >for the DVD - Does the "authority of the copyright owner" required by >1201(a)(3) take place: > >(1) at the point of purchase of the DVD; or >(2) at the point of purchase of the licensed CSS decryption device >(purchasing Xing, buying a stand-alone player, etc)? > >If the answer is (1), the authorization has already been granted to the >bona fide purchaser and user of the DVD, and therefore use of DeCSS does >not fall under the "circumvention" definition, barring a tracing of >licensing provisions between the MPAA and those it represents, DVD-CCA, >the manufacturer of the software/hardware viewers and the end consumer. What do you get when you buy a DVD? From previous experience with other media, and the absence of a limiting contract or even shrink-wrap license, you expect you've purchased the right to watch the movie it contains -- the right to access the copyrighted work. Lack of notice to the contrary gives at least a strong suggestion that purchase is the authorizing act. Question: Do CSS-encrypted DVDs have shrink-wrap licenses that pop up and require assent before you play them? This is where it seems cases such as Quality King v. L'Anza (first sale) come in. Once the copyright owner has parted with a copy of his work, he cannot later reach out and restrict use of that copy. He can stop selling copies, or enter restrictive contracts on each sale so he can go after the person who sold to Quality King, but he can't chase down the third party non-infringing user of the work. If the purchaser is permitted to access the work in a roundabout way, then the tool that permits him to do so is not primarily a circumvention device. >If the answer is (2), then "authority" is equivalent to the state of >having purchased/licensed a DVD-CCA licensed viewer. No authority is >present in the use of DeCSS and functionally similar devices. > >It is important to underline that the statute refers to the authority of >"the copyright owner", as opposed to the authority of those who >implemented CSS. This suggests that the "authority" is granted at the >time of purchase of the DVD itself: it is illogical to say that >purchasing/licensing of a software or hardware DVD player grants -in >itself- the authority to access each individual copyrighted work that it >can be used for. As you note (and I've deleted), potentially problematic: use of the CSS encryption could, by its licensing terms, operate as a delegation of authority to anyone who had a license to produce a player, which the player manufacturer could then pass on to hardware purchasers. Illogical yes, but plausible. [...] >Any thoughts? What is the granularity on access authorization? Is it binary -- you may view or you may not view -- or can a copyright holder specify in which ways you may view -- you may view only on this player, in this order, this many times...? There's at least a decent argument that the right of a copyright holder to withhold publication entirely does not encompass the right to add byzantine restrictions to the use of a work that he has published. Even given ProCD (shrink wrap licenses can add extra conditions to the use of uncopyrightable material), does the DMCA (legitimately) allow the copyright holder to add unwritten, unconsented to license terms to its product without notice? --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 13:48:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31712 for dvd-discuss-outgoing; Sun, 5 Mar 2000 13:48:54 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA31709 for ; Sun, 5 Mar 2000 13:48:53 -0500 Received: (qmail 10509 invoked from network); 5 Mar 2000 19:57:37 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 19:57:37 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id MAA14505; Sun, 5 Mar 2000 12:02:02 -0800 Date: Sun, 5 Mar 2000 12:02:02 -0800 Message-Id: <200003052002.MAA14505@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption of Copyright Material Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu rongus@tiac.net (Ron Gustavson) wrote: >On Sun, 5 Mar 2000 02:43:52 -0600, "sparky" wrote: > >>Eliminating encryption on copyrighted material (or on anything else) by >>making it illegal will never work. The ramifications of such a law would be >>just as bad as 1201, maybe worse. For example, it would make it more >>difficult for individuals to use encryption, which would only serve >>organizations like the NSA when they want to limit our privacy rights in >>order to make their intelligence jobs easier. > >Even HDCP isn't as bad as it looks. It's only 56-bit and if it makes the cable >companies feel more secure, so be it. We're probably better off looking out >for our own freedom to use the encryption we need. It ain't the encryption. It's needing a key to use the toilet. With RC5-64 a failure and 128bit pretty much well known as an excellent system we're fscked. I'm not waiting till they install 128bit encryption into the hardware. It doesn't take a lot to change the designs. And people do want that 50" monitor to type shell scripts on from 50 feet away. >Also of concern is how access to the LOC will evolve. When >commercially-available digital text and media start to account for the lions' >share of newly-copyrighted work, how will access be granted? > >Will the Library become the hundred-year sphinx, promising riches to come, >but not to the living, but the unborn? > You mean I have to be frozen until the legal disease is cured? >__________no-∞-do__________ Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 14:00:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01299 for dvd-discuss-outgoing; Sun, 5 Mar 2000 14:00:14 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01296 for ; Sun, 5 Mar 2000 14:00:14 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id PAA10569 for ; Sun, 5 Mar 2000 15:13:09 -0500 (EST) Message-Id: <4.2.2.20000305145643.00aa0100@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sun, 05 Mar 2000 15:13:06 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] Taking a break In-Reply-To: <000001bf864e$9ad848e0$fb7945ce@bugbug.WinNATDomain> References: <20000303205021.A915@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I want to offer space and whatever else I can to host the various resources we're developing on the Openlaw site. I think it's useful to have a central collection of information and analysis, and I like the idea of posting papers. That's why I keep asking what tools people would find useful -- even if it's just FTP, let me know. --Wendy At 08:57 PM 3/4/00 -0600, sparky@suba.com wrote: >Re: hosting on OpenLaw or on a separate domain, would it be a good idea to >move the post documents I've made onto that site? [...] > > greslin@linuxpower.org > > > I've been approached recently with the idea of hosting the FAQ on it's own > > domain, as well as on the Harvard OpenLaw site. > > > > It looks like it's going to happen; we can easily host a section > > on the site > > dedicated to the "OpenLaw Papers" - essays, sub-FAQ's, "findings of fact", > > miscellaneous hallucinations, whatever. :) > > > > Seriously, though, I'll go with what the group decides here. But > > I think that > > this would be a good way to get "consensus" ideas presented that > > doesn't involve > > Slashdot-style moderation (*shiver*) or "findings of fact" that > > amount to little > > more than the "10 most popular thoughts" on this list. Anyone > > who participates > > in the list can post a "paper", and then we can blast away at it; > > at the same > > time we can make it clear that the papers represent the opinions > > of the individual > > authors and do not necessarily represent the group as a whole. > > > > > > Rob Warren > > greslin@linuxpower.org > > www.iag.net/~aleris > > wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 14:44:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08734 for dvd-discuss-outgoing; Sun, 5 Mar 2000 14:44:49 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA08731 for ; Sun, 5 Mar 2000 14:44:48 -0500 Received: from [38.32.79.48] (helo=ip48.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12Ri5v-0005Ne-00; Sun, 5 Mar 2000 15:57:43 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption of Copyright Material Date: Sun, 05 Mar 2000 20:56:43 GMT Message-ID: <38c7c9e6.23793520@mail.tiac.net> References: <000101bf86d5$ece12f80$da7945ce@bugbug.WinNATDomain> In-Reply-To: <000101bf86d5$ece12f80$da7945ce@bugbug.WinNATDomain> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA08732 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 5 Mar 2000 13:06:35 -0600, "sparky" wrote: >> Will the Library become the hundred-year sphinx, promising riches to come, >> but not to the living, but the unborn? > >I don't know what story you're referring to here, but sphinxes are cool so >I'd love to hear it. :) In that case, I'll have to write it... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 16:17:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA30525 for dvd-discuss-outgoing; Sun, 5 Mar 2000 16:17:30 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA30518 for ; Sun, 5 Mar 2000 16:17:29 -0500 Received: (qmail 27809 invoked by uid 60001); 5 Mar 2000 22:30:24 -0000 Message-ID: <20000305223024.27808.qmail@web502.mail.yahoo.com> Received: from [24.28.154.65] by web502.mail.yahoo.com; Sun, 05 Mar 2000 14:30:24 PST Date: Sun, 5 Mar 2000 14:30:24 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ian Hay wrote: > A look through the October and November livid-dev mailing list > archives, in my reading, refutes this entire paragraph. > What we see in the mailing list is: Johansen announcing that > CSS had been cracked; > references to off-list communication of the livid-dev members trying > to convince them to release the source; references to Johansen's > prior hostility to the idea of releasing the source to the Linux > community; Johansen explicitly stating that he doubted the other > developers of DeCSS would allow the source to be released to the > Linux community; and ultimate release of the source after much > stern lecturing by the livid-dev members about the value of open > source. > > In other words: it is complete bullshit to say that it was, at its > inception, a part of the LiViD development process. Hmmm - I've only skimmed those, so I'll take you at your word that they are as you say. Perhaps Johansen is trying to pander to public sympathy and ride the Linux bandwagon. On the other hand, this does establish some positive points: He did participate in the LiViD mailing list, he did "come around" and release the source to LiViD, there was interest from LiViD in having the technology. I was taking Johansen at his word in the following interviews: http://slashdot.org/interviews/00/02/04/1133241.shtml 5)Why Windows? by Kupek Q: I think that the charges you are facing is rather ridiculous, but I have to wonder: Why Windows? If the motive of you and the group you worked with was to have a DVD player for Linux, why release this program that works only under Windows? A: While this was being worked on, Linux did not have UDF [ the filesystem used on dvds ] support. It was thus natural to implement it under Windows in order to test if it actually worked. [ Yes, I've used Windows, nobody's perfect http://www.cnn.com/2000/TECH/computing/01/31/johansen.interview.idg/index.html LinuxWorld: How did this whole thing start? How did you get involved with DVD and DeCSS? Jon Johansen: Well, I got involved with DVD about two yearsago. I bought my first DVD-ROM and an MPEG-2 decoder card. And, about at the end of September last year, I got in contact with a German computer programmer and a Dutch computer programmer, and we decided that it was time to add DVD support to Linux -- and, of course, to other operating systems, such as FreeBSD. > Again, people are free to refute my reading of the livid-dev mailing > list, but I just don't think it bears out the above statements about > the original purpose of DeCSS. Do the livid-dev mailing list archives actually contradict anything he said in the above interview questions? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 16:44:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03558 for dvd-discuss-outgoing; Sun, 5 Mar 2000 16:44:24 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA03555 for ; Sun, 5 Mar 2000 16:44:23 -0500 Received: (qmail 16983 invoked from network); 5 Mar 2000 22:53:07 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 22:53:07 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA27829; Sun, 5 Mar 2000 14:57:31 -0800 Date: Sun, 5 Mar 2000 14:57:31 -0800 Message-Id: <200003052257.OAA27829@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Encryption of Copyright Material Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky wrote: > > >> -----Original Message----- >> From: owner-dvd-discuss@eon.law.harvard.edu >> [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Ron Gustavson >> Sent: Sunday, March 05, 2000 12:18 PM >> To: dvd-discuss@eon.law.harvard.edu >> Subject: Re: [dvd-discuss] Encryption of Copyright Material >> >> >> Also of concern is how access to the LOC will evolve. When >> commercially-available digital text and media start to account >> for the lions' >> share of newly-copyrighted work, how will access be granted? > >Actually this puts in mind a technological access prevention measure which >might be legitimate. I could see a library which loaned not copies fixed in >media such as paper or compact discs but purely digitally; you'd download >the work when you borrowed it. Such a format could have a tech prevention >measure which would cause the borrowed copy to expire at the end of your >borrowed term. You'd then have to re-borrow it to have access to it again. >Such measures could only apply to works not in the public domain (still with >copyright in effect), of course. > Isn't reborrowing a little redundant? The return part when you don't have to pay for content like at a library is so everyone can view it. Kinda pointless don't you think? :) >> >> Will the Library become the hundred-year sphinx, promising riches to come, >> but not to the living, but the unborn? > >I don't know what story you're referring to here, but sphinxes are cool so >I'd love to hear it. :) > >sparky > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 16:44:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03633 for dvd-discuss-outgoing; Sun, 5 Mar 2000 16:44:54 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03629 for ; Sun, 5 Mar 2000 16:44:53 -0500 Received: from sympatico.ca (ppp5823.on.bellglobal.com [206.172.198.135]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id SAA10503 for ; Sun, 5 Mar 2000 18:03:08 -0500 (EST) Message-ID: <38C2E7F0.85A10841@sympatico.ca> Date: Sun, 05 Mar 2000 18:04:16 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) References: <20000305223024.27808.qmail@web502.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > Again, people are free to refute my reading of the livid-dev mailing > > list, but I just don't think it bears out the above statements about > > the original purpose of DeCSS. > > Do the livid-dev mailing list archives actually contradict anything he > said in the above interview questions? As far as I found, not directly. But, again, the sequence of events/messages just doesn't directly support his interview statements either. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 16:54:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05395 for dvd-discuss-outgoing; Sun, 5 Mar 2000 16:54:16 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA05337 for ; Sun, 5 Mar 2000 16:54:15 -0500 Received: (qmail 17349 invoked from network); 5 Mar 2000 23:03:00 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 5 Mar 2000 23:03:00 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id PAA28917; Sun, 5 Mar 2000 15:07:23 -0800 Date: Sun, 5 Mar 2000 15:07:23 -0800 Message-Id: <200003052307.PAA28917@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ian Hay wrote: >Bryan Taylor wrote: > >> > Again, people are free to refute my reading of the livid-dev mailing >> > list, but I just don't think it bears out the above statements about >> > the original purpose of DeCSS. >> >> Do the livid-dev mailing list archives actually contradict anything he >> said in the above interview questions? > >As far as I found, not directly. But, again, the sequence of >events/messages just doesn't directly support his interview statements >either. Guess who probably researched those logs? Right. He fscked us over the dope. I don't think he should be jailed and I don't think these three need to be either. However, they need a kick in the ASCII. >I. >-- > ____ >| | Ian R. Hay >|____| Toronto, Canada Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 19:49:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04228 for dvd-discuss-outgoing; Sun, 5 Mar 2000 19:49:25 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA04225 for ; Sun, 5 Mar 2000 19:49:24 -0500 Received: from bugbug (max01-29.suba.com [206.69.121.221]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA16857 for ; Sun, 5 Mar 2000 20:02:18 -0600 (CST) From: "sparky" To: Subject: RE: RE: [dvd-discuss] Encryption of Copyright Material Date: Sun, 5 Mar 2000 20:01:21 -0600 Message-ID: <000001bf870f$de5f25e0$dd7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <200003052257.OAA27829@ns1.filetron.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares wrote: > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Rares Marian > Sent: Sunday, March 05, 2000 4:58 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: RE: [dvd-discuss] Encryption of Copyright Material > > > sparky wrote: > > > > > >> -----Original Message----- > >> From: owner-dvd-discuss@eon.law.harvard.edu > >> [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Ron > Gustavson > >> Sent: Sunday, March 05, 2000 12:18 PM > >> To: dvd-discuss@eon.law.harvard.edu > >> Subject: Re: [dvd-discuss] Encryption of Copyright Material > >> > >> > >> Also of concern is how access to the LOC will evolve. When > >> commercially-available digital text and media start to account > >> for the lions' > >> share of newly-copyrighted work, how will access be granted? > > > >Actually this puts in mind a technological access prevention > measure which > >might be legitimate. I could see a library which loaned not > copies fixed in > >media such as paper or compact discs but purely digitally; you'd download > >the work when you borrowed it. Such a format could have a tech prevention > >measure which would cause the borrowed copy to expire at the end of your > >borrowed term. You'd then have to re-borrow it to have access to > it again. > >Such measures could only apply to works not in the public domain > (still with > >copyright in effect), of course. > > > > Isn't reborrowing a little redundant? The return part when you > don't have to pay for content like at a library is so everyone > can view it. > > Kinda pointless don't you think? :) Yeah, except that no library would ever be allowed to just "lend" as many copies as could be made by downloading (in other words, an infinite amount). If electronic lending were set up, libraries I'm pretty sure would only be allowed to let so many copies go out to the public at any one time. Content providers would doubtless not be selling them the work so much as a license to lend X copies at any time, which is I suppose what they're already kind of doing, it would just become more blatant (as the cost of producing the digital work is obviously more or less nil). Otherwise it would be the same as giving the work away for free. So, in this hypothetical situation, the technological protection would probably have to do something like let the library know when you'd deleted it, or no, it would have to delete itself and then send an email to the library. This is sounding a lot more complicated.. Hmm.. there would probably be simple restrictions that would get you in trouble if you didn't follow them, such as, you can only keep the downloaded file in this directory, which will be scanned when you link to the library, which the file has to be in in order to be opened, blah blah blah.. maybe a software package to maintain all this crap.. sigh. Something I really like about poetry, once you have a pen you can start. YOu practically don't even need paper, write on the wall. So simple. From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 20:38:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA15168 for dvd-discuss-outgoing; Sun, 5 Mar 2000 20:38:25 -0500 Received: from dial80.roadrunner.com (dial80.cybermesa.com [209.12.75.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA15144 for ; Sun, 5 Mar 2000 20:38:22 -0500 Received: (from paul@localhost) by dial80.roadrunner.com (8.8.7/8.8.7) id TAA05605 for dvd-discuss@eon.law.harvard.edu; Sun, 5 Mar 2000 19:54:13 -0700 Date: Sun, 5 Mar 2000 19:54:12 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Taking a break Message-ID: <20000305195411.A5505@localhost> References: <20000303205021.A915@linuxpower.org> <000001bf864e$9ad848e0$fb7945ce@bugbug.WinNATDomain> <4.2.2.20000305145643.00aa0100@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000305145643.00aa0100@law.harvard.edu>; from wendy@seltzer.com on Sun, Mar 05, 2000 at 03:13:06PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Mar 05, 2000 at 03:13:06PM -0500, Wendy Seltzer wrote: > I want to offer space and whatever else I can to host the various resources > we're developing on the Openlaw site. I think it's useful to have a > central collection of information and analysis, and I like the idea of > posting papers. That's why I keep asking what tools people would find > useful -- even if it's just FTP, let me know. Could we have majordomo insert something like a: X-URL: http://eon.law.harvard.edu/archive/dvd-discuss/msg01234.html or X-DVD-Discuss-Index: 01234 header into each message, so that we can have a stable cross-indexing between messages and also indexing into the archive from the FAQ, both using a single index key? Right now, this particular index information is only in the filenames assigned to each message, not in the message headers. It would be good to have it on a header line too. Obviously the index numbers should be unique and static. Some people read the mailing list via the webserver on eon, while others of us use a local mailbox. A single index key would allow all of us to follow single type of reference (assuming that your mailer can search header strings). Right now if I want to add a pointer to an earlier message where some issue has already been mentioned (or add a pointer to a FAQ entry) I've got to go to eon to look-up the index number that web-based readers need to quickly find the message. Ditto for FAQ entries. There may be a few additional issues to work out regarding the uniqueness of the archive server, and the name of the dvd-discuss archive, but we can do, "cut and try" for starters. Are there any objections to putting the name of the list on the left side of the colon in X-DVD-Discuss-Index: or the machine name on the right side of X-URL: ? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 21:29:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29698 for dvd-discuss-outgoing; Sun, 5 Mar 2000 21:29:44 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA29695 for ; Sun, 5 Mar 2000 21:29:43 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id VAA26330 for dvd-discuss@eon.law.harvard.edu; Sun, 5 Mar 2000 21:42:38 -0600 Date: Sun, 5 Mar 2000 21:42:37 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000305214237.A26260@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000305223024.27808.qmail@web502.mail.yahoo.com> <38C2E7F0.85A10841@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <38C2E7F0.85A10841@sympatico.ca> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Mar 05, 2000 at 06:04:16PM -0500, Ian Hay wrote: > Bryan Taylor wrote: > > > > Again, people are free to refute my reading of the livid-dev mailing > > > list, but I just don't think it bears out the above statements about > > > the original purpose of DeCSS. > > > > Do the livid-dev mailing list archives actually contradict anything he > > said in the above interview questions? > > As far as I found, not directly. But, again, the sequence of > events/messages just doesn't directly support his interview statements > either. I agree with Brian's interpretation of the livid-dev archives. Johansen was not a part of the livid development effort, and there seemed to be a bit of animosity between them. From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 21:43:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA31701 for dvd-discuss-outgoing; Sun, 5 Mar 2000 21:43:40 -0500 Received: from smtp13.bellglobal.com (smtp13.bellglobal.com [204.101.251.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA31698 for ; Sun, 5 Mar 2000 21:43:39 -0500 Received: from sympatico.ca (ppp19591.on.bellglobal.com [206.172.226.215]) by smtp13.bellglobal.com (8.8.5/8.8.5) with ESMTP id WAA14904 for ; Sun, 5 Mar 2000 22:59:37 -0500 (EST) Message-ID: <38C32DF8.FBB9FE30@sympatico.ca> Date: Sun, 05 Mar 2000 23:03:04 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) References: <20000305223024.27808.qmail@web502.mail.yahoo.com> <38C2E7F0.85A10841@sympatico.ca> <20000305214237.A26260@thud.reric.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > > On Sun, Mar 05, 2000 at 06:04:16PM -0500, Ian Hay wrote: > > Bryan Taylor wrote: > > > > > > Again, people are free to refute my reading of the livid-dev mailing > > > > list, but I just don't think it bears out the above statements about > > > > the original purpose of DeCSS. > > > > > > Do the livid-dev mailing list archives actually contradict anything he > > > said in the above interview questions? > > > > As far as I found, not directly. But, again, the sequence of > > events/messages just doesn't directly support his interview statements > > either. > > I agree with Brian's interpretation of the livid-dev archives. Johansen > was not a part of the livid development effort, and there seemed to be > a bit of animosity between them. Please get your attributions right. That was me that said that. (Though that's not quite what I said.) I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 5 23:30:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22861 for dvd-discuss-outgoing; Sun, 5 Mar 2000 23:30:25 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22858 for ; Sun, 5 Mar 2000 23:30:24 -0500 Received: from [38.32.10.29] (helo=ip29.bedford2.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12RqIa-0006SC-00; Mon, 6 Mar 2000 00:43:20 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption of Copyright Material Date: Mon, 06 Mar 2000 05:42:06 GMT Message-ID: <38ce4452.55138669@mail.tiac.net> References: <000001bf870f$de5f25e0$dd7945ce@bugbug.WinNATDomain> In-Reply-To: <000001bf870f$de5f25e0$dd7945ce@bugbug.WinNATDomain> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id XAA22859 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 5 Mar 2000 20:01:21 -0600, "sparky" wrote: >Yeah, except that no library would ever be allowed to just "lend" as many >copies as could be made by downloading (in other words, an infinite amount). >If electronic lending were set up, libraries I'm pretty sure would only be >allowed to let so many copies go out to the public at any one time. Content >providers would doubtless not be selling them the work so much as a license >to lend X copies at any time, which is I suppose what they're already kind >of doing, it would just become more blatant (as the cost of producing the >digital work is obviously more or less nil). Otherwise it would be the same This is the crux of the library problem in the digital age. While libraries haven't yet been commercialized, they may not be able to avoid some type of metering vis a vis digital media. (This is generally more relevant to eBooks, but I'll try to steer it back to DVD and encryption.) We see libraries as free to the user, but materials are purchased, subscriptions are maintained, and unwanted works are sold off. Taxes, endowments, and public investment all play a part. I personally like analog here. Digital text and media might be searched and accessed on site, while analog copies or excerpts might be allowed for a small fee, just as photocopies can be made today. (Publishers would have to agree to a site-license metering scheme.) Print on demand enjoys the cost-saving benefits of digital technology, but without stamping on the fair use rights of the user. Most DVDs do not now allow analog excerpts to be made. This is unfortunate for teachers, etc. In this light Macrovision is more objectionable than CSS. If Hollywood would strike a balance between protection for Arnold and Madonna, and respect for the Betamax decision, no one would be bothering with DeCSS. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 07:48:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13798 for dvd-discuss-outgoing; Mon, 6 Mar 2000 07:48:34 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA13795 for ; Mon, 6 Mar 2000 07:48:33 -0500 Received: (qmail 7706 invoked by uid 502); 6 Mar 2000 14:03:21 -0000 Date: Mon, 6 Mar 2000 09:03:21 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000306090321.D4628@linuxpower.org> References: <20000305181524.24605.qmail@web505.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000305181524.24605.qmail@web505.mail.yahoo.com>; from Bryan Taylor on Sun, Mar 05, 2000 at 10:15:24AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Mar 05, 2000 at 10:15:24AM -0800, Bryan Taylor wrote: > --- greslin@linuxpower.org wrote: > > On Fri, Mar 03, 2000 at 08:03:02AM -0800, Bryan Taylor wrote: > > > DeCSS is a piece of a replacement for the player, eg XingDVD, > > > which is the "analyzed program". There are several choices for > > > the "other program": the movie specific interface program on > > > the DVD, and/or the authoring program both exchange > > > information with XingDVD, which is being replaced by > > > LiViD and/or DeCSS + an MPEG2 player. > > > > Something needs to be said here that is *REAL* important. One of > > Robin's questions is regarding the "Myths of DeCSS", and Bryan, > > part of what you are saying here is one of them. We can't let > > the attorneys go into court thinking that it's true. > > > > "DeCSS" - the Windows executable written by Jon Johansen, the > > subject of the current court case in New York - is no more a > > "component in a Linux video player" than it is a "DVD copier", > > and for the same reasons. This program does one thing and one > > thing only - it descrambles CSS. The use to > > which you put the decrypted stream is completely arbitrary to the > > function and design of the program. If we claim different, that the > > purpose of DeCSS is to be part of a Linux video player, then > > the MPAA can just as accurately say that it's a DVD copier. > > First of all, I simply did not say what you allege I said. I did not mean to imply that you actually used the words "video player for Linux"; the quote marks were unfortunate. My apologies. But the truth is, this *is* what you're saying - that DeCSS is a component in an open-source DVD player, LiViD, and had been explicitly designed for that purpose. And the fact is, that is wrong: DeCSS is in no way a physical component of the LiViD video player. If you have some evidence stating that I am wrong here, I'm open to it. > Second, I don't think you correctly state the matter anyway. The > correct myth statement is "DeCSS runs under Linux". In the months I've been working with this issue, I have never encountered statement. No, I don't think that this is the "correct myth statement". There is a central tenet in pro-DeCSS propaganda which states that DeCSS is a part of the LiViD player, and so qualifies under the RE exemptions. Unfortunately, this isn't the case. I would love it to be true - it would make an RE qualification much easier - but I don't think it's going to happen. The evidence isn't there. All evidence to date - notwithstanding Johansen interviews taken after all the ugliness caught up with him - shows that DeCSS is a standalone program that does nothing but strip CSS. As I said, the purpose to which you put the resulting files is completely arbitrary to the function of the program. > Despite your assertions otherwise, DeCSS is in fact part of the LiViD > development effort. At the time of it's development, there was no UDF > filesystem reader for Linux, so DeCSS was written for windows to leave > the decrypted movie on the harddrive, presumably to allow you to switch > to Linux and use the LiViD mpeg2 player under development. Johansen was > a regular contributor to LiViD and announced DeCSS there, so even > though DeCSS runs only on windows, it definitely was part of the LiViD > development, and a piece of a cross-platform tool that ultimately plays > movies on Linux. After reading Ian's response, I went back and read the livid-dev archives myself. October itself is really pretty interesting. There doesn't seem to be a whole lot of open-source sentiments coming from Jon or anyone involved on the M.O.R.E. side of things. While there is no direct and absolute evidence going either way, the archives cast some serious doubt as to M.O.R.E.'s Linux sentiments. They appear to be exactly what they seemed at first, an "leet warez crew". I did make one blatant mistake in my post, however: I claimed that DeCSS did not contain the css-auth code written by Derek Fawcus, but that css-auth had in fact been developed from an analysis of DeCSS. This is only partly true. According to linux-dev, this was true for DeCSS 1.0. 1.1 incorporated the css-auth code in place of the original. The good, Linux-friendly, open-source developers over at M.O.R.E. took Derek's code, changed all the function names, stripped out all copyrights and credits (including the GPL notice) attributing the code to Fawcus and most of the block documentation from the module. In short, they stole Derek's code and blatantly violated the GPL in doing so to claim it as theirs. This was from Derek himself. Yeah, a *whole* lot of sympathy goes there. As far as the interviews go, I don't think they hold a lot of weight. Think about it. Here's a sixteen year old kid who has already been hassled by the authorities and invited the rage of a multi-billion dollar industry. He's in it deep and he knows it; he's probably scared shitless. Any of us would be at sixteen. Hell, most of us would be anyway. Since this directly affects the Linux community, they rally. They've been waiting for this for a long time. Linux press goes to Jon and asks him why he did it. He can either say "because it was a kind of cool thing to do" or "to help create a Linux DVD player". The latter means he might get support from powers that have made a great deal of money lately. If it were you, which would *you* do? I know which one I would do. If we want to be accurate here, we should realize that the Johansen interviews in the press don't mean a thing because he had every motivation to fabricate. DeCSS wasn't written to test css-auth against a UDF-supporting system; the LiViD team saved Jon's ass by giving him a legitimate venue for his work. > Forth, the intent behind DeCSS IS very important, and it is clear that > DeCSS was distributed to advance LiViD as a development tool and not to > be a DVD pirating tool. Under (a)(2)(A) it is the "designed for ... > purpose" that is at stake. Since DeCSS is GPL, it has no commercial > purpose at all as required by (a)(2)(B), and it isn't for sale, so it > isn't "marketed" under (a)(2)(C). The whole LiViD endeavor is aimed at > providing non-commercial playback tools. Oooohh.. where do I begin? First off, I agree that the intent behind DeCSS is very important for this entire issue. The problem here is that the evidence casts serious doubt as to that intent. You can't just make the evidence go away because it makes your life inconvenient. Two, you're still stuck in the "Linux video player" versus "DVD pirating tool" thing. It's actually much more likely that it was built to find out if it could be built. People later claimed it was designed for either purpose. If you have done any real programming in your life, you know that this is the main motivation - just to see if it could be done. Three, I do not believe the original DeCSS release was GPL, though it may have been. I would be interested in evidence stating that this was the case, one way or another. In either case, licensing code as GPL does not mean it has no commercial purpose at all and you know it. If you have any questions about this issue, ask Red Hat. Bob Young would tell you that GPL code has a very significant commercial purpose ("the more I give away, the more I sell"). We can try arguing the non-commercial angle, but we had better not be hiding behind the GPL to do it. All, please forgive the length of this reply. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 09:00:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA26394 for dvd-discuss-outgoing; Mon, 6 Mar 2000 09:00:38 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA26391 for ; Mon, 6 Mar 2000 09:00:35 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id HAA15916 for ; Mon, 6 Mar 2000 07:13:43 -0800 (PST) Message-ID: <38C3CAD3.553B64E3@cdpage.com> Date: Mon, 06 Mar 2000 08:12:19 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption of Copyright Material References: <000001bf870f$de5f25e0$dd7945ce@bugbug.WinNATDomain> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky wrote: > > > Yeah, except that no library would ever be allowed to just "lend" as many > copies as could be made by downloading (in other words, an infinite amount). > If electronic lending were set up, libraries I'm pretty sure would only be > allowed to let so many copies go out to the public at any one time. Content > providers would doubtless not be selling them the work so much as a license > to lend X copies at any time, which is I suppose what they're already kind > of doing, it would just become more blatant (as the cost of producing the > digital work is obviously more or less nil). Otherwise it would be the same > as giving the work away for free. Intersting article on how libraries are dealing with this: http://www.universitybusiness.com/0002/library.html -- Dana J. Parker From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 09:42:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02991 for dvd-discuss-outgoing; Mon, 6 Mar 2000 09:42:49 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA02988 for ; Mon, 6 Mar 2000 09:42:44 -0500 Received: (qmail 22512 invoked by uid 60001); 6 Mar 2000 15:55:38 -0000 Message-ID: <20000306155538.22511.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Mon, 06 Mar 2000 07:55:38 PST Date: Mon, 6 Mar 2000 07:55:38 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > I agree with Brian's interpretation of the livid-dev archives. > Johansen was not a part of the livid development effort, and there > seemed to be a bit of animosity between them. I think you mean Ian's interpretation. I had originally said he was, but I hadn't read the livid discussion archives. I don't think it's clear cut one way or the other. I would not put it past Johansen to try to appear more linux-friendly after the fact, but I also don't think it's damning that he took a while to "warm up" to the concept of open source. Pro's: 1. Johansen knew livid existed and felt people there would be interested in his posts. This lends some credibility to his linux interest. 2. Johansen did eventually release the source code. Even if he was initially reluctant, he did "come around". Many people take a while to absorb the value of open source software development. 3. His explaination regarding the UDF filesystem readers does make sense. He also seemed apologetic for using windows. These are the sort of statements that only a linux user would display. Con's: 1. Johansen was reluctant to release the code. Why? Perhaps he only sought out livid because he wanted to find people who he could brag to that would be interested. 2. Other than DeCSS, I haven't seen any other contributions to livid, especially on the development side. 3. There was animosity towards Johansen on livid, indicating that he wasn't part of the mainstream there. 4. It appears Johansen released the executable before the source. This is very incongruous behavior for someone who wanted to advance an open source project. Anybody have others? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 10:19:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12158 for dvd-discuss-outgoing; Mon, 6 Mar 2000 10:19:17 -0500 Received: from mx01.gis.net (scribe.gis.net [208.218.130.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12155 for ; Mon, 6 Mar 2000 10:19:11 -0500 From: breeve@ibm.net Received: from left (ppp47-68.gis.net [216.41.47.68]) by mx01.gis.net (8.8.8/8.8.8+pyrd) with SMTP id LAA08128 for ; Mon, 6 Mar 2000 11:30:27 -0500 (EST) Message-Id: <3.0.6.32.20000306113007.00850790@pop6.ibm.net> X-Sender: breeve@pop6.ibm.net (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Mon, 06 Mar 2000 11:30:07 -0500 To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu For whatever it might be worth, there are those of us on the sidelines watching the spontaneity and turmoil of this list who are *incredibly* encouraged by this thread. Focused on and deepened, this area of thinking demonstrates the profound and fundamental vacuity of the proffered notion of the "circumvention" of an informational entity. The cable television example is somewhat inapposite. There, you have a weekly or monthly "subscription agreement," a lot of the legal theology is about the provision of a "service"; the converter box is leased or even "semi-leased" -- (a DVD disk is of course purchased); there are longstanding lengthy sections of semi-copyright law to deal with the provision of cable television service that have been in 17 USC since the 70s. There may be some possibilities, in cable theft / non-theft of service land, but they don't have anything like the wonderful beauty of driving intensely hard at the notion that here someone has bought this shiny aluminum/plastic platter -- okay she can't make "copies" of it and sell them, I got that, those are physical things, other similar plastic platters ...l but what kind of a *right* of what scope, justified how, on what legal basis, is embodied in the proposition, for example, that she can't "descramble a scrambled work"? Who is to say, even, for example, what is "scrambled"? Ditto "impair" ... down the list. What else does it mean that she bought the damn thing? To watch the movie is to "unscramble" it .... There is a very incoherent core to 1201, a kind of "...uh, pornography...I know it when I see it..." unanalyzable, unanalyzed, suppositious declamation in proposed distincton between lawful and not in the DMCA. Fwiw, I think the thing to do is to drive at the incoherence, open it up, emphasize it and re-emphasize it.... There is little in the statute that is not merely a nebulous gloss upon market interest. Interest may be militarily strong, but it is notoriously logically weak. Here's the problem as I see it: Assuming that the person using DeCSS or other functionally similar devices (a) intend to use it for viewing only and (b) bought and paid for the DVD - Does the "authority of the copyright owner" required by 1201(a)(3) take place:(1) at the point of purchase of the DVD; or (2) at the point of purchase of the licensed CSS decryption device (purchasing Xing, buying a stand-alone player, etc)? If the answer is (1), the authorization has already been granted to the bona fide purchaser and user of the DVD, and therefore use of DeCSS does not fall under the "circumvention" definition, barring a tracing of licensing provisions between the MPAA and those it represents, DVD-CCA, the manufacturer of the software/hardware viewers and the end consumer. If the answer is (2), then "authority" is equivalent to the state of having purchased/licensed a DVD-CCA licensed viewer. No authority is present in the use of DeCSS and functionally similar devices. It is important to underline that the statute refers to the authority of "the copyright owner", Benjamin Reeve From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 10:37:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16483 for dvd-discuss-outgoing; Mon, 6 Mar 2000 10:37:38 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA16471 for ; Mon, 6 Mar 2000 10:37:25 -0500 Received: (qmail 11445 invoked by uid 60001); 6 Mar 2000 16:50:09 -0000 Message-ID: <20000306165009.11444.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Mon, 06 Mar 2000 08:50:09 PST Date: Mon, 6 Mar 2000 08:50:09 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > > First of all, I simply did not say what you allege I said. > > I did not mean to imply that you actually used the words "video > player for Linux"; the quote marks were unfortunate. My apologies. > > But the truth is, this *is* what you're saying - that DeCSS is a > component in an open-source DVD player, LiViD, and had been > explicitly designed for that purpose. And the fact is, that is wrong: > DeCSS is in no way a physical component of the LiViD video player. I refered to "LiViD and/or DeCSS + an MPEG2 player", which shows that I do not consider DeCSS to be compenent of LiViD, though it has some kind of "livid connection". The MPEG2 player absolutely could be the one that is part of LiViD, and from his interview, this appears to be what Johansen eventually intended, though perhaps not from the outset. When DeCSS was released, there was no css-auth, so this would be reasonable thing to do. > There is a central tenet in pro-DeCSS propaganda which states that > DeCSS is a part of the LiViD player, and so qualifies under the RE > exemptions. The source code to DeCSS was released at the urging of the livid mailing list, who clearly wanted the technology to advance there own efforts. I believe that css_auth was created from DeCSS by analysis. As you stated, this inbreeding may have gone both ways. Perhaps Johansen doesn't have the cleanest hands here, but he did give the crucial piece of the code to livid. I don't think it matters if he and the livid developers where chummy. What matters is if his "linux" motivation is credible. Certainly this is not as clear as I had thought it was when I posted before, but I'm don't think it's been refuted either. > All evidence to date - notwithstanding Johansen interviews taken > after all the ugliness caught up with him - shows that DeCSS is a > standalone program that does nothing but strip CSS. "Standalone" is a bit strong. DeCSS is pretty useless unless you use it with another program. Are you suggesting that people decrypt DVD just for the sport of it? > Two, you're still stuck in the "Linux video player" versus "DVD > pirating tool" thing. It's actually much more likely that it was built to > find out if it could be built. This is probably true. While it might not meet the conditions of 1201(g), I would call this the "science" of encryption research. It doesn't really matter if it meets 1201(g), because it wasn't done in the US. > Three, I do not believe the original DeCSS release was GPL, though it > may have been. I would be interested in evidence stating that this was > the case, one way or another. I've just been repeating this because it hadn't been challenged. Does anybody know for sure? > In either case, licensing code as GPL > does not mean it has no commercial purpose at all and you know it. The only allowable fee you can get under the GPL is for the physical media transfered under GPL clause 1. The licence is explicitly free to all third parties under GPL 2.b) http://www.gnu.org/copyleft/gpl.html > If you have any questions about this issue, ask Red Hat. > Bob Young would tell you that GPL code has a very significant > commercial purpose ("the more I give away, > the more I sell"). We can try arguing the non-commercial angle, but > we had better not be hiding behind the GPL to do it. Actually, you are strengthening the case against (a)(2)(A) applicability. Red Hat sells support, not GPL software (which there customers already have a licence to use), which is allowed under GPL clause 1. If the commercially significant purpose of DeCSS is to create a market for software services, then it doesn't meet the requirements of (a)(2)(A). The funtionality itself of DeCSS as a access control circumventer is forever deprived of commercial value, so any other commercial purpose outweighs this. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 11:15:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27663 for dvd-discuss-outgoing; Mon, 6 Mar 2000 11:15:28 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA27554 for ; Mon, 6 Mar 2000 11:15:09 -0500 Received: (qmail 18732 invoked by uid 60001); 6 Mar 2000 17:28:04 -0000 Message-ID: <20000306172804.18731.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Mon, 06 Mar 2000 09:28:04 PST Date: Mon, 6 Mar 2000 09:28:04 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Re: comments from breeve To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- breeve@ibm.net wrote: > Here's the problem as I see it: > Assuming that the person using DeCSS or other functionally similar > devices (a) intend to use it for viewing only and (b) bought and paid > for the DVD - Does the "authority of the copyright owner" required by > 1201(a)(3) take place:(1) at the point of purchase of the DVD; or > (2) at the point of purchase of the licensed CSS decryption device > (purchasing Xing, buying a stand-alone player, etc)? First of all, it's not either/or. Authority can be transfered multiple times. All it takes is some affirmative act. > If the answer is (1), the authorization has already been granted to > the bona fide purchaser and user of the DVD, and therefore use of > DeCSS does not fall under the "circumvention" definition, > barring a tracing of licensing provisions between the MPAA and > those it represents, DVD-CCA, the manufacturer of the > software/hardware viewers and the end consumer. The DVD copyright notice grants "for private home viewing only". A similar copyright notice's grants were sufficient to meet the abandonment standard that "the copyright owner must have clearly manifested [their] intention through some affirmative act" in the case HADADY CORP. V. DEAN WITTER REYNOLDS, INC., 739 F. Supp. 1392 (C.D. CA 1990), which you can get from www.jurisline.com. Note also that the title key comes on the DVD, and this is what actually protects the movie itself. Under the MPAA's plans, a separate purchase is required to get the player key needed to decrypt it. This is an example of using the limited monopoly granted by copyright to engage in the anticompetitive practice of "tying". The motion picture industry was spanked for this before in US v. Paramount. You could perhaps argue that the player key only protects the title key and not the movie. The title key doesn't express any ideas, it is just a number. As such, accessing this "fact" may not qualify as circumvention of a "work controlled under [Title 17]". > If the answer is (2), then "authority" is equivalent to the state of > having purchased/licensed a DVD-CCA licensed viewer. No authority is > present in the use of DeCSS and functionally similar devices. > It is important to underline that the statute refers to the authority > of "the copyright owner". I haven't seen any language that comes with the players manifesting this grant, but I don't own a player, so I don't know. It could be argued that by having a player key, there is an implied grant to use it to retrieve the title keys which it protects. You could also argue that by putting CSS protection on your content using the title key, that you have authorized the relevent players to have access. I think the above paragraph is a reasonable explaination of why using, say XingDVD to view your movie is authorized, but it doesn't contradict any other authorizations, such as the one in the copyright notice. In other words, this is sufficient, but not strictly necessary to demonstrate authorization. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 11:32:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01164 for dvd-discuss-outgoing; Mon, 6 Mar 2000 11:32:46 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA01080 for ; Mon, 6 Mar 2000 11:32:44 -0500 Received: (qmail 8047 invoked by uid 502); 6 Mar 2000 17:47:34 -0000 Date: Mon, 6 Mar 2000 12:47:34 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000306124734.I4628@linuxpower.org> References: <20000306165009.11444.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000306165009.11444.qmail@web501.mail.yahoo.com>; from Bryan Taylor on Mon, Mar 06, 2000 at 08:50:09AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 08:50:09AM -0800, Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > > All evidence to date - notwithstanding Johansen interviews taken > > after all the ugliness caught up with him - shows that DeCSS is a > > standalone program that does nothing but strip CSS. > > "Standalone" is a bit strong. DeCSS is pretty useless unless you use it > with another program. Are you suggesting that people decrypt DVD just > for the sport of it? The "average user"? No. But the guys that put together DeCSS? Yup. Do you know anyone who considers themselves "leet"? I unfortunately do. Invariably, they do stuff like this not because they're trying to further technological advancement or even to make a political point, but almost purely to show off. It's all sport, all an ego trip. Now I'm not saying that my experiences with this kind of person directly apply to M.O.R.E. and Johansen. For all I know, they might not apply at all. But we have to at least confront the possibility that DeCSS was written for no other reason than to be "leet", and to show off. In short, for the sport of it. > > In either case, licensing code as GPL > > does not mean it has no commercial purpose at all and you know it. > > The only allowable fee you can get under the GPL is for the physical > media transfered under GPL clause 1. The licence is explicitly free to > all third parties under GPL 2.b) http://www.gnu.org/copyleft/gpl.html I'm well familiar with the GPL. I currently have code in circulation under the GPL. While the GPL states that a fee cannot be *extorted* from a user (i.e., the distributor must make the source code openly available without cost), it also does not say that you cannot charge for a GPL program. Of course you can, and you are not limited to the cost of the media and transferral. If I write a new kick-ass C compiler, and throw it under the GPL, I can package and sell it for any price I want as long as I make the source code openly available for the cost of media and transferral. Go back and reread the GPL license you just referenced. "Terms and Conditions for Copying, Distribution and Modification", sections 1 and 3. These sections deal specifically with the distribution of GPL programs. The second you quoted, section 2, pertains to the conditions applied to *modification* of GPL code. While you're at it, go back to the Preamble and mull over the words: "When we speak of free software, we are referring to freedom, not price." I would say that GPL software very much can have a commercial purpose; I'm sure companies like IBM would not be getting involved with it if it did not. > > If you have any questions about this issue, ask Red Hat. > > Bob Young would tell you that GPL code has a very significant > > commercial purpose ("the more I give away, > > the more I sell"). We can try arguing the non-commercial angle, but > > we had better not be hiding behind the GPL to do it. > > Actually, you are strengthening the case against (a)(2)(A) > applicability. Red Hat sells support, not GPL software (which there > customers already have a licence to use), which is allowed under GPL > clause 1. If the commercially significant purpose of DeCSS is to create > a market for software services, then it doesn't meet the requirements > of (a)(2)(A). The funtionality itself of DeCSS as a access control > circumventer is forever deprived of commercial value, so any other > commercial purpose outweighs this. Actually, a more accurate statement is that it would bounce against 17 USC 1201(a)(2)(B), rather than (a)(2)(A). (a)(2)(B) is the clause that talks about "limited commercially significant purpose". At any rate, this isn't the point. The GPL doesn't bestow commercial purpose any more than it invalidates it. If we want to argue that DeCSS has no commercial purpose, then we had better not do it by saying "It's GPL, that invalidates commercial purpose".. that's flat out not true. The next question from the judge would be "From what I hear, a lot of companies became rather large lately, then, using GPL code, didn't they?" Our answer: "Uh.. um.. but.." The real killer of course is that if DeCSS has commercial purpose, then that makes the 1201 violation a criminal violation; if it does not, then it's covered by 1201(a)(2)(B). Damned if you do, damned if you don't. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 11:41:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA03172 for dvd-discuss-outgoing; Mon, 6 Mar 2000 11:41:45 -0500 Received: from dial153.roadrunner.com (dial153.cybermesa.com [209.12.75.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA03167 for ; Mon, 6 Mar 2000 11:41:42 -0500 Received: (from paul@localhost) by dial153.roadrunner.com (8.8.7/8.8.7) id KAA01029 for dvd-discuss@eon.law.harvard.edu; Mon, 6 Mar 2000 10:57:45 -0700 Date: Mon, 6 Mar 2000 10:57:44 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorized? Another way of seeing it... Message-ID: <20000306105743.A895@localhost> References: <20000303145916.A17823@thud.reric.net> <38C14ECA.8FE92D5B@sympatico.ca> <20000304120104.A1754@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000304120104.A1754@localhost>; from fenimore@roadrunner.com on Sat, Mar 04, 2000 at 12:01:05PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 04, 2000 at 12:01:05PM -0700, Paul Fenimore wrote: > I'll try to get some law on the various types of cable "circumvention". Well, last night I got to it: 47 U.S.C. 553 * (a) Unauthorized interception or receipt or assistance in intercepting or receiving service; ''assist in intercepting or receiving'' defined + (1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. + (2) For the purpose of this section, the term ''assist in intercepting or receiving'' shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1). [ ... ] Sounds vaguely familiar... maybe... 17 USC 1201? Also, 47 U.S.C. 605 is relevant. * (a) Practices prohibited Except as authorized by chapter 119, title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, [ ... ] Paul From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 11:42:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA03368 for dvd-discuss-outgoing; Mon, 6 Mar 2000 11:42:46 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA03365 for ; Mon, 6 Mar 2000 11:42:45 -0500 Received: (qmail 8055 invoked by uid 502); 6 Mar 2000 17:57:36 -0000 Date: Mon, 6 Mar 2000 12:57:36 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Goodness Message-ID: <20000306125736.J4628@linuxpower.org> References: <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000228161647.A23265@linuxpower.org>; from greslin@linuxpower.org on Mon, Feb 28, 2000 at 04:16:47PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Team - The 03/06/2000 cut of the FAQ is online at www.iag.net/~aleris/dvdfaq.txt. You can also get past releases of the FAQ at www.iag.net/~aleris/dvdfaq.html; I think it might be a good idea to archive these releases for historical purposes. I unfortunately do not have a copy of the initial FAQ release anymore; if anyone grabbed it, please email it to me so I can post it. The new cut has been completely reorganized, and there is about 60% new information. There are a number of questions that have been left unanswered, mainly because I felt they were better left to other people in this forum. If you have sent me submissions for the FAQ and you do not see them here, then they got lost in the shuffle and overlooked. As far as I know, I've included all material provided to me. If I missed something please drop me an offline email and let me know, and it will be corrected. If you have contributed to this FAQ but I've inadvertantly overlooked your name in the contributor's list, let me know and it will be corrected. Finally, if you see your name at the top of the FAQ under "Contributors" but not at the end under "Biographies", that means that while I recognize that you have contributed to the FAQ, I don't know anything about you. Please drop me a line and give me a brief biography of yourself for inclusion in the FAQ. Thanks, Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 12:25:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16454 for dvd-discuss-outgoing; Mon, 6 Mar 2000 12:25:40 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA16451 for ; Mon, 6 Mar 2000 12:25:39 -0500 Received: (qmail 8127 invoked by uid 502); 6 Mar 2000 18:40:29 -0000 Date: Mon, 6 Mar 2000 13:40:29 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve Message-ID: <20000306134029.L4628@linuxpower.org> References: <20000306172804.18731.qmail@web502.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000306172804.18731.qmail@web502.mail.yahoo.com>; from Bryan Taylor on Mon, Mar 06, 2000 at 09:28:04AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 09:28:04AM -0800, Bryan Taylor wrote: > > --- breeve@ibm.net wrote: > > Here's the problem as I see it: > > Assuming that the person using DeCSS or other functionally similar > > devices (a) intend to use it for viewing only and (b) bought and paid > > for the DVD - Does the "authority of the copyright owner" required by > > 1201(a)(3) take place:(1) at the point of purchase of the DVD; or > > (2) at the point of purchase of the licensed CSS decryption device > > (purchasing Xing, buying a stand-alone player, etc)? > > First of all, it's not either/or. Authority can be transfered multiple > times. All it takes is some affirmative act. If you're reading this from Hadady, this doesn't seem to deal with the granting of authority but the abandonment of copyright. Do you have any other legal references besides Hadady to back up the "affirmative act" statement in relation to granting of copyright authority? Or are we claiming that by printing "For home use only" on DVD's that an abandonment of copyright situation exists? > > If the answer is (2), then "authority" is equivalent to the state of > > having purchased/licensed a DVD-CCA licensed viewer. No authority is > > present in the use of DeCSS and functionally similar devices. > > It is important to underline that the statute refers to the authority > > of "the copyright owner". > > I haven't seen any language that comes with the players manifesting > this grant, but I don't own a player, so I don't know. It could be > argued that by having a player key, there is an implied grant to use it > to retrieve the title keys which it protects. You could also argue that > by putting CSS protection on your content using the title key, that you > have authorized the relevent players to have access. I currently own a Panasonic DVD-A115U console DVD player; I bought it about four months ago and currently own about thirty or forty DVD's. The manual for this player, on the lower back cover, says the following: "Apparatus Claims of U.S. Patent Nos. 4,631,603, and 4,819,098, licensed for limited viewing uses only. This product incorporates copyright protection technology that is protected by method claims of certain U.S. patents and other intellectual property rights owned by Macrovision Corporation and other rights owners. Use of this copyright protection technology must be authorized by Macrovision Corporation, and is intended for home and other limited viewing uses only unless otherwise authorized by Macrovision Corporation. Reverse engineering or disassembly is prohibited." Panasonic, by the way, is a division of Matshusita Electric Corporation of America. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 12:40:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20721 for dvd-discuss-outgoing; Mon, 6 Mar 2000 12:40:43 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20712 for ; Mon, 6 Mar 2000 12:40:41 -0500 Received: from sympatico.ca (ppp7154.on.bellglobal.com [206.172.224.218]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id NAA05037 for ; Mon, 6 Mar 2000 13:58:22 -0500 (EST) Message-ID: <38C40018.E75B73A8@sympatico.ca> Date: Mon, 06 Mar 2000 13:59:36 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: References: <3.0.6.32.20000306113007.00850790@pop6.ibm.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dammit! I appreciate the comments that I've snipped, but could people PLEASE be more careful about properly attributing to the correct person who said what??? -I- wrote the following passage, and it was part of a much longer part. Now you have B Taylor commenting on it below as though you wrote it. I'm not trying to be selfish here about attributing to me what I wrote, but there is ALREADY another thread discussing this, and the way you quoted it appears to start a new subject, when it doesn't. If you can't find decent mail software that quotes properly, then don't quote. breeve@ibm.net wrote: > Here's the problem as I see it: > Assuming that the person using DeCSS or other functionally similar > devices (a) intend to use it for viewing only and (b) bought and paid > for the DVD - Does the "authority of the copyright owner" required by > 1201(a)(3) take place:(1) at the point of purchase of the DVD; or > (2) at the point of purchase of the licensed CSS decryption device > (purchasing Xing, buying a stand-alone player, etc)? > If the answer is (1), the authorization has already been granted to the > bona fide purchaser and user of the DVD, and therefore use of DeCSS does > not fall under the "circumvention" definition, barring a tracing of > licensing provisions between the MPAA and those it represents, DVD-CCA, > the manufacturer of the software/hardware viewers and the end consumer. > If the answer is (2), then "authority" is equivalent to the state of > having purchased/licensed a DVD-CCA licensed viewer. No authority is > present in the use of DeCSS and functionally similar devices. > It is important to underline that the statute refers to the authority of > "the copyright owner", > Benjamin Reeve -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 12:41:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20741 for dvd-discuss-outgoing; Mon, 6 Mar 2000 12:41:31 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA20736 for ; Mon, 6 Mar 2000 12:41:30 -0500 Received: (qmail 22657 invoked by uid 60001); 6 Mar 2000 18:54:19 -0000 Message-ID: <20000306185419.22656.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Mon, 06 Mar 2000 10:54:19 PST Date: Mon, 6 Mar 2000 10:54:19 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > Do you know anyone who considers themselves "leet"? I'm not to up on the latest lingo of the WareZ crowd. What does this term mean? > I'm well familiar with the GPL. I currently have code in circulation > under the GPL. While the GPL states that a fee cannot be *extorted* > from a user (i.e., the distributor must make the source code openly > available without cost), it also does not say that you cannot charge > for a GPL program. Of course you can, and you are not limited to the > cost of the media and transferral. GPL 2.b) "You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License." GPL 1. "[...] You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee." Summary. The GPL explicitly forbids licencing charges, explicitly allows transfer and warranty fees, and is silent on everything else. These restrictions apply to anyone besides the author. I guess you have to look at the authors actions as well to get the whole picture. > If I write a new kick-ass C compiler, and throw it under the GPL, I > can package and sell it for any price I want as long as I make the > source code openly available for the cost of media and transferral. Umm, yes, but anyone ELSE who charges for the licence (other than for the two explicitly allowed reasons), is guilty of ordinary copyright infringement, since this right is not abandoned and is therefore retained. In this sense, GPL is stronger than public domain at preventing commercial purposes by others. I suppose you have convinced me that it's not solely the GPL that makes it non-commercial, but also the fact that it was voluntarily given away for free (as in beer) by the author in conjunction with a GPL licence. The author passed on "first sale", and provided a licence which could allow the whole world to have the software without any profit going to the author. > I would say that GPL software very much can have a commercial > purpose; I'm sure companies like IBM would not be getting involved with > it if it did not. IBM is a services company. They're bonding with open source because it attacks the revenue stream of their rivals, ie it decommercializes their rivals core-competencies. > Actually, a more accurate statement is that it would bounce against > 17 USC 1201(a)(2)(B), rather than (a)(2)(A). (a)(2)(B) is the clause > that talks about "limited commercially significant purpose". Oops. I did mean (B). Sorry. > The real killer of course is that if DeCSS has commercial purpose, > then that makes the 1201 violation a criminal violation; if it does not, > then it's covered by 1201(a)(2)(B). Damned if you do, damned if you > don't. No, (a)(2)(B) requires absense of commercially significant purpose "other than" to circumvent, which implies that circumvention must be a commercially significant purpose if this is to apply. This implies an intent on the author to try to profit from the item. All the evidence seems to lead away from this intent. What more could someone do to prevent ANYONE from profiting from it other than giving it away for free and retaining the copyright while abandoning the distribution right? Taken together, the GPL + voluntary pass on "first sale" profits are the strongest statement you can make as to your non-commercial purposes for the functionality (as opposed to the act of transfer and support). If you want to argue the opposite, then state what the commercial aspects of DeCSS's functionality are. Who is profiting from it's circumvention capabilities? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 12:41:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20964 for dvd-discuss-outgoing; Mon, 6 Mar 2000 12:41:59 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20961 for ; Mon, 6 Mar 2000 12:41:58 -0500 Received: from sympatico.ca (ppp7154.on.bellglobal.com [206.172.224.218]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id OAA06251 for ; Mon, 6 Mar 2000 14:00:15 -0500 (EST) Message-ID: <38C40089.3F3C473D@sympatico.ca> Date: Mon, 06 Mar 2000 14:01:30 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve References: <20000306172804.18731.qmail@web502.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Again - dammit - pay attention. What 'breeve' appears to have said is a badly mangled version of a post I already made under the 'authorization' thread. Please comment on that instead. I. Bryan Taylor wrote: > > --- breeve@ibm.net wrote: > > Here's the problem as I see it: > > Assuming that the person using DeCSS or other functionally similar > > devices (a) intend to use it for viewing only and (b) bought and paid > > for the DVD - Does the "authority of the copyright owner" required by > > 1201(a)(3) take place:(1) at the point of purchase of the DVD; or > > (2) at the point of purchase of the licensed CSS decryption device > > (purchasing Xing, buying a stand-alone player, etc)? > > First of all, it's not either/or. Authority can be transfered multiple > times. All it takes is some affirmative act. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 12:54:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24494 for dvd-discuss-outgoing; Mon, 6 Mar 2000 12:54:05 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA24490 for ; Mon, 6 Mar 2000 12:54:04 -0500 Received: (qmail 8233 invoked by uid 502); 6 Mar 2000 19:08:54 -0000 Date: Mon, 6 Mar 2000 14:08:54 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Analogies to Deep Linking Message-ID: <20000306140854.M4628@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was thinking the other day that we may want to do some looking into the recent Ticketmaster deep linking situation. While there are a number of important differences - it's not a 1201 case, for example - the general principles are mostly the same: whether a third party has the right to bypass intended "front door" measures to get at information services. For those of you who don't know what I'm talking about, "deep linking" refers to linking to an internal website rather than the "front door" page, in order to bypass advertising and the like that companies put out front. A number of commercial entities have been doing this with Ticketmaster's website, and Ticketmaster is unhappy with it. Does anyone know if any of the deep linking complaints (Ticketmaster, Universal, etc.) have actually been taken to court? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 13:03:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27410 for dvd-discuss-outgoing; Mon, 6 Mar 2000 13:03:00 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA27388 for ; Mon, 6 Mar 2000 13:02:58 -0500 Received: (qmail 8247 invoked by uid 502); 6 Mar 2000 19:17:48 -0000 Date: Mon, 6 Mar 2000 14:17:48 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ/List Index Idea Message-ID: <20000306141748.N4628@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul and I have been sending email back and forth offline lately, and an idea came up we both thought should be thrown out for discussion. The FAQ is getting pretty big, and I think we all agree that it should be primarily a summary of the current discussion rather than a comprehensive guide for beating 1201. But on another level, we really should begin building some sort of document that provides references to individual messages on the list for each FAQ question. What I'm thinking of here is to build a separate document with a list of each current FAQ question. Each question would then be listed with a brief list of important messages posted to the list; sort of a footnotes index to the FAQ. It would, along with the search mechanism already in place, provide an invaluable resource for someone wanting to do research against our posts here. Any thoughts? If we do this (and I really think we should), someone else will have to maintain it besides myself; I don't have the time to maintain both it and the FAQ. I will, of course, be happy to coordinate with whoever wants to take this on in offline email. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 13:16:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31000 for dvd-discuss-outgoing; Mon, 6 Mar 2000 13:16:42 -0500 Received: from dial150.roadrunner.com (dial150.cybermesa.com [209.12.75.150]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30997 for ; Mon, 6 Mar 2000 13:16:37 -0500 Received: (from paul@localhost) by dial150.roadrunner.com (8.8.7/8.8.7) id MAA01587 for dvd-discuss@eon.law.harvard.edu; Mon, 6 Mar 2000 12:32:32 -0700 Date: Mon, 6 Mar 2000 12:32:31 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve Message-ID: <20000306123229.A1557@localhost> References: <20000306172804.18731.qmail@web502.mail.yahoo.com> <20000306134029.L4628@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000306134029.L4628@linuxpower.org>; from greslin@linuxpower.org on Mon, Mar 06, 2000 at 01:40:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 01:40:29PM -0500, greslin@linuxpower.org wrote: > On Mon, Mar 06, 2000 at 09:28:04AM -0800, Bryan Taylor wrote: > > I haven't seen any language that comes with the players manifesting > > this grant, but I don't own a player, so I don't know. It could be > > argued that by having a player key, there is an implied grant to use it > > to retrieve the title keys which it protects. You could also argue that > > by putting CSS protection on your content using the title key, that you > > have authorized the relevent players to have access. > > I currently own a Panasonic DVD-A115U console DVD player; I bought it about > four months ago and currently own about thirty or forty DVD's. > > The manual for this player, on the lower back cover, says the following: > > "Apparatus Claims of U.S. Patent Nos. 4,631,603, and 4,819,098, licensed > for limited viewing uses only. > > This product incorporates copyright protection technology that is protected > by method claims of certain U.S. patents and other intellectual property > rights owned by Macrovision Corporation and other rights owners. Use of this > copyright protection technology must be authorized by Macrovision Corporation, > and is intended for home and other limited viewing uses only unless otherwise > authorized by Macrovision Corporation. Reverse engineering or disassembly is > prohibited." > > Panasonic, by the way, is a division of Matshusita Electric Corporation of > America. I didn't look at the cited patents, so hopefully I'm sticking my foot in my mouth, _but_ Macrovision is copy-control not access control. The question would really be about US Patent 6,009,171, "the CSS patent". Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 13:33:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02264 for dvd-discuss-outgoing; Mon, 6 Mar 2000 13:33:12 -0500 Received: from dial115.roadrunner.com (dial115.cybermesa.com [209.12.75.115]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02260 for ; Mon, 6 Mar 2000 13:33:04 -0500 Received: (from paul@localhost) by dial115.roadrunner.com (8.8.7/8.8.7) id MAA01864 for dvd-discuss@eon.law.harvard.edu; Mon, 6 Mar 2000 12:49:04 -0700 Date: Mon, 6 Mar 2000 12:49:02 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve Message-ID: <20000306124901.A1733@localhost> References: <20000306172804.18731.qmail@web502.mail.yahoo.com> <20000306134029.L4628@linuxpower.org> <20000306123229.A1557@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000306123229.A1557@localhost>; from fenimore@roadrunner.com on Mon, Mar 06, 2000 at 12:32:31PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 12:32:31PM -0700, Paul Fenimore wrote: > I didn't look at the cited patents, so hopefully I'm sticking my foot > in my mouth, _but_ Hmmm, tastes good. That should be _not_ sticking... From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 13:40:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04011 for dvd-discuss-outgoing; Mon, 6 Mar 2000 13:40:55 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA04008 for ; Mon, 6 Mar 2000 13:40:54 -0500 Received: (qmail 8265 invoked by uid 502); 6 Mar 2000 19:55:41 -0000 Date: Mon, 6 Mar 2000 14:55:41 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000306145541.O4628@linuxpower.org> References: <20000306185419.22656.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000306185419.22656.qmail@web503.mail.yahoo.com>; from Bryan Taylor on Mon, Mar 06, 2000 at 10:54:19AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 10:54:19AM -0800, Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > Do you know anyone who considers themselves "leet"? > > I'm not to up on the latest lingo of the WareZ crowd. What does this > term mean? It's short for "elite". Other versions include "l33t" and such. Annoying, ain't it? :) > > I'm well familiar with the GPL. I currently have code in circulation > > under the GPL. While the GPL states that a fee cannot be *extorted* > > from a user (i.e., the distributor must make the source code openly > > available without cost), it also does not say that you cannot charge > > for a GPL program. Of course you can, and you are not limited to the > > cost of the media and transferral. > > GPL 2.b) "You must cause any work that you distribute or publish, that > in whole or in part contains or is derived from the Program or any part > thereof, to be licensed as a whole at no charge to all third parties > under the terms of this License." Once again, GPL 2 refers to the modification of GPL code and the conditions applied to the redistribution of same. It does not have anything to do with the redistribution of verbatim copies. The above passage states that you cannot take a piece of GPL'ed code that someone else wrote, *modify it*, throw it behind a brick wall and then charge people money to come listen to it scream. > > GPL 1. "[...] You may charge a fee for the physical act of transferring > a copy, and you may at your option offer warranty protection in > exchange for a fee." GPL 1, unlike GPL 2, deals with verbatim, unmodified copies. Nothing in GPL 1 forbids any form of charging whatsoever. The only restrictions placed within GPL 1 state that if you redistribute GPL code, you must respect copyright notices and warranty disclaimers; it also states that you must include a copy of the GPL license with the new copy. Go back and read it again slowly. Read the whole thing, not just the parts that are useful to you. > Summary. The GPL explicitly forbids licencing charges, explicitly > allows transfer and warranty fees, and is silent on everything else. Which is pretty much exactly what I said. The GPL forbids extorting a fee from the user (a.k.a. a licensing charge) for modified copies, and that's the limit of it's fee-limiting restrictions. You're falling into the myth that a lot of people have who bitch about the GPL, the "If I put it out under the GPL, I can't charge for it!" myth. That myth is utter bullshit. Once again, from the Preamble to the GPL: "When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things." > > I would say that GPL software very much can have a commercial > > purpose; I'm sure companies like IBM would not be getting involved > with > > it if it did not. > > IBM is a services company. They're bonding with open source because it > attacks the revenue stream of their rivals, ie it decommercializes > their rivals core-competencies. Agreed. Now what part of this is not a commercial purpose? > > The real killer of course is that if DeCSS has commercial purpose, > > then that makes the 1201 violation a criminal violation; if it does > not, > > then it's covered by 1201(a)(2)(B). Damned if you do, damned if you > > don't. > > No, (a)(2)(B) requires absense of commercially significant purpose > "other than" to circumvent, which implies that circumvention must be a > commercially significant purpose if this is to apply. This implies an > intent on the author to try to profit from the item. All the evidence > seems to lead away from this intent. What have you been smoking? (a)(2)(B) implies no such thing. What is *says* is that a circumvention device is a violation of 1201(a)(2), *unless* it has a commercially significant purpose that is not "limited". Since, by your argument, DeCSS has no commercially significant purpose other than to circumvent access control, I would say that (a)(2)(B) applies rather well. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 13:46:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05452 for dvd-discuss-outgoing; Mon, 6 Mar 2000 13:46:17 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA05449 for ; Mon, 6 Mar 2000 13:46:15 -0500 Received: (qmail 8316 invoked by uid 502); 6 Mar 2000 20:01:05 -0000 Date: Mon, 6 Mar 2000 15:01:05 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve Message-ID: <20000306150105.P4628@linuxpower.org> References: <20000306172804.18731.qmail@web502.mail.yahoo.com> <20000306134029.L4628@linuxpower.org> <20000306123229.A1557@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000306123229.A1557@localhost>; from Paul Fenimore on Mon, Mar 06, 2000 at 12:32:31PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 12:32:31PM -0700, Paul Fenimore wrote: > On Mon, Mar 06, 2000 at 01:40:29PM -0500, greslin@linuxpower.org wrote: > > On Mon, Mar 06, 2000 at 09:28:04AM -0800, Bryan Taylor wrote: > > > I haven't seen any language that comes with the players manifesting > > > this grant, but I don't own a player, so I don't know. It could be > > > argued that by having a player key, there is an implied grant to use it > > > to retrieve the title keys which it protects. You could also argue that > > > by putting CSS protection on your content using the title key, that you > > > have authorized the relevent players to have access. > > > > I currently own a Panasonic DVD-A115U console DVD player; I bought it about > > four months ago and currently own about thirty or forty DVD's. > > > > The manual for this player, on the lower back cover, says the following: > > > > "Apparatus Claims of U.S. Patent Nos. 4,631,603, and 4,819,098, licensed > > for limited viewing uses only. > > > > This product incorporates copyright protection technology that is protected > > by method claims of certain U.S. patents and other intellectual property > > rights owned by Macrovision Corporation and other rights owners. Use of this > > copyright protection technology must be authorized by Macrovision Corporation, > > and is intended for home and other limited viewing uses only unless otherwise > > authorized by Macrovision Corporation. Reverse engineering or disassembly is > > prohibited." > > > > Panasonic, by the way, is a division of Matshusita Electric Corporation of > > America. > > I didn't look at the cited patents, so hopefully I'm sticking my foot > in my mouth, _but_ > > Macrovision is copy-control not access control. The question would > really be about US Patent 6,009,171, "the CSS patent". The "Apparatus Claims" section is separate from the rest of the text in the manual; I should have pointed that out. It's also not purely Macrovision here, but "other rights owners". I'd be curious, however, to find out why authorization rights are being delegated purely to Macrovision. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 14:45:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20221 for dvd-discuss-outgoing; Mon, 6 Mar 2000 14:45:11 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20184 for ; Mon, 6 Mar 2000 14:44:49 -0500 Received: (qmail 24865 invoked by uid 60001); 6 Mar 2000 20:57:37 -0000 Message-ID: <20000306205737.24864.qmail@web506.mail.yahoo.com> Received: from [131.44.121.4] by web506.mail.yahoo.com; Mon, 06 Mar 2000 12:57:37 PST Date: Mon, 6 Mar 2000 12:57:37 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: comments from breeve To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > > First of all, it's not either/or. Authority can be transfered > multiple times. All it takes is some affirmative act. > > If you're reading this from Hadady, this doesn't seem to deal with > the granting of authority but the abandonment of copyright. Do you have > any other legal references besides Hadady to back up the "affirmative > act" statement in relation to granting of copyright authority? Well, I was not really equating permission with abandonment, but I think they are sufficiently similar to be treated similarly. I wasn't quoting Hadady, but I was borrowing from it using a common sense analogy. > Or are we claiming that by printing "For home use only" on DVD's that > an abandonment of copyright situation exists? No, but I think it would be silly to latch on to the reading in that case of Hadady's copyright notice to find abandonment and try to use this context as a distinguishing feature to argue that the copyright notice isn't meaningful for inferring other things such as grants of authority. > I currently own a Panasonic DVD-A115U console DVD player; I bought > it about four months ago and currently own about thirty or forty DVD's. > > The manual for this player, on the lower back cover, says the > following: > > "Apparatus Claims of U.S. Patent Nos. 4,631,603, and 4,819,098, > licensed for limited viewing uses only. > > This product incorporates copyright protection technology that is > protected by method claims of certain U.S. patents and other > intellectual property rights owned by Macrovision Corporation and > other rights owners. Use of this copyright protection technology must > be authorized by Macrovision Corporation, and is intended for home and > other limited viewing uses only unless otherwise > authorized by Macrovision Corporation. Reverse engineering or > disassembly is prohibited." Is there an easy way to look up a patent by number over the web? The notice is pretty vague unless you know exactly what they are refering to. By the way, the "Reverse engineering or disassembly is prohibited" part is almost certainly not enforcable. This is a very common tactic that companies use - they tell you that you are prohibited from doing something that they cannot prohibit you from doing, in the hopes that it will discourage the activity. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 16:20:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17925 for dvd-discuss-outgoing; Mon, 6 Mar 2000 16:20:59 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA17902 for ; Mon, 6 Mar 2000 16:20:57 -0500 Received: from [38.32.79.142] (helo=ip142.bedford9.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12S64Z-00039x-00; Mon, 6 Mar 2000 17:33:55 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: comments from breeve Date: Mon, 06 Mar 2000 22:32:47 GMT Message-ID: <38c43139.26570159@mail.tiac.net> References: <20000306205737.24864.qmail@web506.mail.yahoo.com> In-Reply-To: <20000306205737.24864.qmail@web506.mail.yahoo.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA17911 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 6 Mar 2000 12:57:37 -0800 (PST), Bryan Taylor wrote: >Is there an easy way to look up a patent by number over the web? The >notice is pretty vague unless you know exactly what they are refering >to. try http://www.uspto.gov/patft/index.html >By the way, the "Reverse engineering or disassembly is prohibited" part >is almost certainly not enforcable. This is a very common tactic that >companies use - they tell you that you are prohibited from doing >something that they cannot prohibit you from doing, in the hopes that >it will discourage the activity. It's likely that the separate notice for the Macrovision notice is due to the materials being printed some time ago, and was agreed upon by the original DVD Forum, when Macrovision was chosen. (long before the CSS patent.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 17:37:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05389 for dvd-discuss-outgoing; Mon, 6 Mar 2000 17:37:35 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA05384 for ; Mon, 6 Mar 2000 17:37:30 -0500 Received: (qmail 9244 invoked by uid 60001); 6 Mar 2000 23:50:12 -0000 Message-ID: <20000306235012.9243.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Mon, 06 Mar 2000 15:50:12 PST Date: Mon, 6 Mar 2000 15:50:12 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > Once again, GPL 2 refers to the modification of GPL code and the > conditions applied to the redistribution of same. It does not have > anything to do with the redistribution of verbatim copies. Well, that could be interpreted as a null modification :-) > Nothing in GPL 1 forbids any form of charging whatsoever. The only > restrictions placed within GPL 1 state that if you redistribute GPL > code, you must respect copyright notices and warranty disclaimers; > it also states that you must include a copy of the GPL license with > the new copy. Reselling the _licence_ without an explicit grant to do so would be infringement of the statutory rights retained to the copyright holder under 17 USC 106(3) as well a criminal offense under 17 USC 501(a)(1). Nothing in the GPL grants the right to sell the licence, and so no such authority exists. There is no burden on the copyright holder to spell out the law to a potential infringer. > Go back and read it again slowly. Read the whole thing, not just the > parts that are useful to you. You do not need to be so patronizing. It is not constructive. > Which is pretty much exactly what I said. The GPL forbids extorting > a fee from the user (a.k.a. a licensing charge) for modified copies, > and that's the limit of it's fee-limiting restrictions. No, the GPL does not forbid anything. It GRANTS limited authority for things which are normally retained exclusively by the copyright holder, such as distributing derivitive works as in 17 USC 106(2). It is actually 17 USC 106(3) that forbids what you say. Incidentally, if the copyright notice isn't usable (as some are suggesting) by the licencee to prove the granting of authority needed to provide an affirmative defense to Title 17 violations, then the GPL is worthless and open source software authors should start suing deep pocket companies like Red Hat and IBM. It extremely strange that this has been a contentious issue in this forum, because it is the very foundation of open source software that licensee can rely on the grants given them. > > IBM is a services company. They're bonding with open source > > because it attacks the revenue stream of their rivals, ie it > > decommercializes their rivals core-competencies. > Agreed. Now what part of this is not a commercial purpose? You may be on to a commercially significant purpose (in a twisted way), but it certainly isn't the use of the software. Regard: The main commercially significant purpose of DeCSS is to decommercialize DVD player technology and counteract the anti-competitive tying of DVD licences to the separate licencing of players. Cite US v Paramount to show that such tying is illegal in spite of movie copyrights. Of course, I think we'll live in a police state faster than you can say "MPAA" if you allow Congress to use the commerce power to prohit activities that attempt to decommercialize such things. Wickard v. Filburn is probably the most egregious example of this, but I think the Supreme Court finally said "enough is enough" in the recent US v Lopez decision. Thomas, at least was ready to overturn this lousy precedent. The other members of the majority were a little more cautious, but I think the days of infinite power under in the name of the commerce power are over. I noticed you didn't respond to my (GPL + no cost) = non-commercial arguement. I think this is a powerful arguement, worth exploring. It could put DeCSS outside the scope of the commerce clause power and avoid (a)(2)(B,C). __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 17:51:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08773 for dvd-discuss-outgoing; Mon, 6 Mar 2000 17:51:57 -0500 Received: from mtiwmhc22.worldnet.att.net (imail@mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08770 for ; Mon, 6 Mar 2000 17:51:56 -0500 Received: from alaptop.hotwired.com ([12.78.128.253]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307000453.GGSF5318.mtiwmhc22.worldnet.att.net@alaptop.hotwired.com> for ; Tue, 7 Mar 2000 00:04:53 +0000 Message-Id: <4.3.0.20000306190057.020d0aa0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Mon, 06 Mar 2000 19:02:59 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: [dvd-discuss] Writing two articles on the lawsuits, this list In-Reply-To: <20000306125736.J4628@linuxpower.org> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Folks, I'm writing two articles, one for Wired News, and one for an intellectual property magazine, on the three lawsuits. Here are some articles I've done before, by way of background: http://www.wired.com/news/politics/0,1283,33716,00.html http://www.wired.com/news/politics/0,1283,33922,00.html http://www.politechbot.com/cgi-bin/politech.cgi?name=decss I've read the latest draft FAQ but I have a few questions that I'm hoping folks can answer (I unfortunately do not have a DVD-R, so please bear with me): * with the help of DeCSS, can I make a copy of a commercial dvd that I rent at blockbuster -- using a dvd-r device like pioneer's -- that can be played in a commercial dvd player? (I'm wondering about the supposedly non-writeable areas.) * if not, why not? * even if not, I assume I can make a bit-for-bit copy to give to my tech-savvy friend who can play it on his computer with the help of DeCSS, correct? * has anyone been added as defendants to any of the three cases? in the calif case, have any more does been identified since the hearings? Thanks, Declan From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 18:39:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18559 for dvd-discuss-outgoing; Mon, 6 Mar 2000 18:39:17 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA18556 for ; Mon, 6 Mar 2000 18:39:16 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id QAA27763 for ; Mon, 6 Mar 2000 16:52:28 -0800 (PST) Message-ID: <38C45277.A6DA7205@cdpage.com> Date: Mon, 06 Mar 2000 17:51:03 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan McCullagh wrote: > Folks, I'm writing two articles, one for Wired News, and one for an > intellectual property magazine, on the three lawsuits. Here are some > articles I've done before, by way of background: > > http://www.wired.com/news/politics/0,1283,33716,00.html > http://www.wired.com/news/politics/0,1283,33922,00.html > http://www.politechbot.com/cgi-bin/politech.cgi?name=decss > > I've read the latest draft FAQ but I have a few questions that I'm hoping > folks can answer (I unfortunately do not have a DVD-R, so please bear with me): > > * with the help of DeCSS, can I make a copy of a commercial dvd that I rent > at blockbuster -- using a dvd-r device like pioneer's -- that can be played > in a commercial dvd player? (I'm wondering about the supposedly > non-writeable areas.) Nope. > * if not, why not? Several reasons, the first one is capacity. Most commercial DVD Videos are dual layer, up to 8.5 billion bytes per side. DVD-R media is still only 4.7 billion bytes per side (and it's doubtful whether it will ever be dual layer). Even the 4.7 ones aren't absolutely 100% failsafe compatible with all existing commercial DVD players. You can copy the .vobs, but I don't believe a program or utility exists to reassemble them and the other DVD Video program files into a program. You'd lose interactivity, menus, navigation control commands, etc. The commercial DVD Video players out there can only play programs in the DVD Video format, which requires a formatter to create. > * even if not, I assume I can make a bit-for-bit copy to give to my > tech-savvy friend who can play it on his computer with the help of DeCSS, > correct? No, see reasons above. You can get the .vob bit for bit, but you need all the other files for a DVD Video player - whether a stand-alone box or a PC-based SW player - to work. They both require a title to be inthe correct format. You could play the .vobs as individual files, though. (anybody who knows more recent info, please correct. This was the state of affairs last time I asked) > * has anyone been added as defendants to any of the three cases? in the > calif case, have any more does been identified since the hearings? Don't know. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 19:21:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA27379 for dvd-discuss-outgoing; Mon, 6 Mar 2000 19:21:16 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA27376 for ; Mon, 6 Mar 2000 19:21:15 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 62C9C76FA; Mon, 6 Mar 2000 19:34:43 -0600 (CST) Date: Mon, 6 Mar 2000 19:34:43 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list Message-ID: <20000306193443.A2324@arh1176.urh.uiuc.edu> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <38C45277.A6DA7205@cdpage.com>; from dparker@cdpage.com on Mon, Mar 06, 2000 at 05:51:03PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 05:51:03PM -0700, Dana Parker wrote: > Declan McCullagh wrote: > > > Folks, I'm writing two articles, one for Wired News, and one for an > > intellectual property magazine, on the three lawsuits. Here are some > > articles I've done before, by way of background: > > > > http://www.wired.com/news/politics/0,1283,33716,00.html > > http://www.wired.com/news/politics/0,1283,33922,00.html > > http://www.politechbot.com/cgi-bin/politech.cgi?name=decss > > > > I've read the latest draft FAQ but I have a few questions that I'm hoping > > folks can answer (I unfortunately do not have a DVD-R, so please bear with me): > > > > * with the help of DeCSS, can I make a copy of a commercial dvd that I rent > > at blockbuster -- using a dvd-r device like pioneer's -- that can be played > > in a commercial dvd player? (I'm wondering about the supposedly > > non-writeable areas.) > > Nope. > > > * if not, why not? > > Several reasons, the first one is capacity. Most commercial DVD Videos are dual > layer, up to 8.5 billion bytes per side. DVD-R media is still only 4.7 billion > bytes per side (and it's doubtful whether it will ever be dual layer). Even the 4.7 > ones aren't absolutely 100% failsafe compatible with all existing commercial DVD > players. > > You can copy the .vobs, but I don't believe a program or utility exists to > reassemble them and the other DVD Video program files into a program. You'd lose > interactivity, menus, navigation control commands, etc. The commercial DVD Video > players out there can only play programs in the DVD Video format, which requires a > formatter to create. I havn't heard that before. Is that true? Isn't it possible to write the decrypted files into a disk image which could be burned onto a DVD-R? Do formatters exist that are available to the general public? > > * even if not, I assume I can make a bit-for-bit copy to give to my > > tech-savvy friend who can play it on his computer with the help of DeCSS, > > correct? > > No, see reasons above. You can get the .vob bit for bit, but you need all the other > files for a DVD Video player - whether a stand-alone box or a PC-based SW player - > to work. They both require a title to be inthe correct format. You could play the > .vobs as individual files, though. > > (anybody who knows more recent info, please correct. This was the state of affairs > last time I asked) It is (at least theoretically) possible to rip a whole DVD-ROM, bit for bit to a disk image, which you could then send to a friend. He could (again theoretically) mount this image as a virtual drive and then have DeCSS or *any* other DVD decoder play it for him. I'm not sure how much of this stuff is possible today, but certainly it could happen without too much new software. The important thing to realize is that DeCSS is no more helpfull than an officially licensed DVD player in this situation, because the DVD image you send acts exactly like a real DVD. > > * has anyone been added as defendants to any of the three cases? in the > > calif case, have any more does been identified since the hearings? As far as I know there has been nothing new in any of the cases in a while. -- Steven Barker scbarker@uiuc.edu You are here: *** *** ********* ******* ***** *** * But you're not all there. From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 19:44:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32331 for dvd-discuss-outgoing; Mon, 6 Mar 2000 19:44:32 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA32328 for ; Mon, 6 Mar 2000 19:44:29 -0500 Received: (qmail 8730 invoked by uid 502); 7 Mar 2000 01:59:19 -0000 Date: Mon, 6 Mar 2000 20:59:19 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Update Re: [dvd-discuss] DVD is a program :) Message-ID: <20000306205919.S4628@linuxpower.org> References: <20000306235012.9243.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000306235012.9243.qmail@web503.mail.yahoo.com>; from Bryan Taylor on Mon, Mar 06, 2000 at 03:50:12PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 06, 2000 at 03:50:12PM -0800, Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > > Once again, GPL 2 refers to the modification of GPL code and the > > conditions applied to the redistribution of same. It does not have > > anything to do with the redistribution of verbatim copies. > > Well, that could be interpreted as a null modification :-) It could be, but since the terms are explicitly stated in the license, interpretation isn't really necessary. One clause flat-out says that it pertains to modified copies; the other flat-out says it pertains to verbatim copies. Interpretation is only really valid when there's room for interpretation. > > Go back and read it again slowly. Read the whole thing, not just the > > parts that are useful to you. > > You do not need to be so patronizing. It is not constructive. Neither is quoting publicly-available and well-known documents out of context, twisting what it says to make a point. > > Which is pretty much exactly what I said. The GPL forbids extorting > > a fee from the user (a.k.a. a licensing charge) for modified copies, > > and that's the limit of it's fee-limiting restrictions. > > No, the GPL does not forbid anything. It GRANTS limited authority for > things which are normally retained exclusively by the copyright holder, > such as distributing derivitive works as in 17 USC 106(2). It is > actually 17 USC 106(3) that forbids what you say. Actually, the GPL is not a copyright notice.. it is a software license agreement. That makes it a binding contract, a more-than-slightly different animal than a mere expression of copyright. The GPL explicitly states that a number of limitations apply to the manner in which GPL software is used; I won't go into them here because I already have, and because anyone can read it for themselves: www.gnu.org/copyleft/gpl.html > Incidentally, if the copyright notice isn't usable (as some are > suggesting) by the licencee to prove the granting of authority needed > to provide an affirmative defense to Title 17 violations, then the GPL > is worthless and open source software authors should start suing deep > pocket companies like Red Hat and IBM. It extremely strange that this > has been a contentious issue in this forum, because it is the very > foundation of open source software that licensee can rely on the grants > given them. The GPL isn't the copyright notice, it is a software license. There are a number of provisions in the law that make the difference clear, starting with the fact that a software license is a legal contract. To the best of my knowledge, a copyright notice is not. The fact that a software license is a contract is the entire reason why there is so much controversy over "clicking" license agreements, and why in a number of countries (including Canada) you can't legally be bound to a license agreement unless you're at least 18 years of age. Feel free to cite any legal reference whatsoever that states that a copyright notice is a legal contract. And please don't quote Hadady; I've read Hadady, you know I've read Hadady, and you know I've already acknowledged that it makes some interesting points in regards to copyright abandonment. But nothing in Hadady goes so far as declares a copyright notice a legally binding contract - not even close. Incidentally, if the GPL were a copyright notice and not a legal contract, GPL clause 5 would be entirely unnecessary; you typically are not given the option of not agreeing to a copyright notice. > Of course, I think we'll live in a police state faster than you can say > "MPAA" if you allow Congress to use the commerce power to prohit > activities that attempt to decommercialize such things. Wickard v. > Filburn is probably the most egregious example of this, but I think the > Supreme Court finally said "enough is enough" in the recent US v Lopez > decision. Thomas, at least was ready to overturn this lousy precedent. > The other members of the majority were a little more cautious, but I > think the days of infinite power under in the name of the commerce > power are over. I sincerely hope this is the case. I'm not completely convinced; we're sort of at the same kind of crossroads that Russia was at in 1992, only in a different context. Two things can happen at this point - either the system reforms in a really big way, or it gets ugly in a really big way. > I noticed you didn't respond to my (GPL + no cost) = non-commercial > arguement. I think this is a powerful arguement, worth exploring. It > could put DeCSS outside the scope of the commerce clause power and > avoid (a)(2)(B,C). I didn't respond to it because I didn't have anything to add to it. I will say, however, that if you wish to argue this on the commerce clause level, you should tread more carefully. (a)(2)(B) states rather clearly that such devices that have little to no commercially significant purpose are exactly what are being banned. You seem to think that (a)(2)(B) says something different than what it says. I suggest going back and rereading it; I have it in front of me as I write this. The potential exemption it gives is if the item in question *does* have a commercially significant purpose. I realize you want to read something else there, because this is pretty damning. But that's what it says. I also doubt that the "noncommercial = not under commerce clause" argument would hold any water whatsoever, purely because while it itself may not have been developed for commercial purposes, it will certainly have a commercial impact. It already has. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 20:19:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07975 for dvd-discuss-outgoing; Mon, 6 Mar 2000 20:19:15 -0500 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA07972 for ; Mon, 6 Mar 2000 20:19:14 -0500 Received: from alaptop.hotwired.com ([12.78.116.108]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307023118.JHQW5318.mtiwmhc22.worldnet.att.net@alaptop.hotwired.com> for ; Tue, 7 Mar 2000 02:31:18 +0000 Message-Id: <4.3.0.20000306212354.020251d0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Mon, 06 Mar 2000 21:29:33 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list In-Reply-To: <38C45277.A6DA7205@cdpage.com> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 17:51 3/6/2000 -0700, Dana Parker wrote: > > * if not, why not? > >Several reasons, the first one is capacity. Most commercial DVD Videos are Thanks. Besides capacity, I should have said. >You can copy the .vobs, but I don't believe a program or utility exists to >reassemble them and the other DVD Video program files into a program. Are you sure? There's certainly <$500 DVD-building sw from companies like Sonic. I wrote about some last year: http://www.wired.com/news/technology/0,1282,32663,00.html Even if not, it's just a matter of following the spec, right? (assuming you don't have to be NDA'd) to work. They both require a title to be inthe correct format. You could play the >.vobs as individual files, though. Thanks, that's what I intended to ask! :) -Declan From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 20:24:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09097 for dvd-discuss-outgoing; Mon, 6 Mar 2000 20:24:38 -0500 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA09094 for ; Mon, 6 Mar 2000 20:24:38 -0500 Received: from alaptop.hotwired.com ([12.78.116.108]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307023629.JKMH5318.mtiwmhc22.worldnet.att.net@alaptop.hotwired.com> for ; Tue, 7 Mar 2000 02:36:29 +0000 Message-Id: <4.3.0.20000306213051.02010210@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Mon, 06 Mar 2000 21:34:45 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list In-Reply-To: <20000306193443.A2324@arh1176.urh.uiuc.edu> References: <38C45277.A6DA7205@cdpage.com> <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 19:34 3/6/2000 -0600, Steven Barker wrote: >It is (at least theoretically) possible to rip a whole DVD-ROM, bit for bit to >a disk image, which you could then send to a friend. He could (again >theoretically) mount this image as a virtual drive and then have DeCSS or >*any* >other DVD decoder play it for him. >I'm not sure how much of this stuff is possible today, but certainly it could >happen without too much new software. The important thing to realize is that >DeCSS is no more helpfull than an officially licensed DVD player in this >situation, because the DVD image you send acts exactly like a real DVD. Except that by decrypting and using your own player, you can ignore the region restrictions, no? May not be a big deal, but that would appear to be one area in which it's more "helpful." -Declan From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 21:08:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA19197 for dvd-discuss-outgoing; Mon, 6 Mar 2000 21:08:21 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA19192 for ; Mon, 6 Mar 2000 21:08:17 -0500 Received: (qmail 19997 invoked by uid 60001); 7 Mar 2000 03:21:12 -0000 Message-ID: <20000307032112.19996.qmail@web506.mail.yahoo.com> Received: from [24.28.154.65] by web506.mail.yahoo.com; Mon, 06 Mar 2000 19:21:12 PST Date: Mon, 6 Mar 2000 19:21:12 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Fair Use is not statutory To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's two Supreme Court citations that show that "Fair Use" is inherent in the copyright clause and is NOT merely a statutory right. The Court has often said the rights of the copyright holder are statutory, but here recognized that judicial tradition has said just the opposite regarding the rights of the public. First sale is also an important event for determining Fair Use. Indeed Fair Use was originally a "judge-made" doctrine and existed in common-law for decades before it was finally codified in 17 USC 107. The quotations show that the House legilslative history recognized that they were "restating" a pre-existing "privilege" to use copyrighted material in limited ways without permission. Some discussion of the Constitutional origin was made in Harper & Row, where the Court rejected an expansion of Fair Use to include Ford's unpublished private memoirs, but implied that the First Amendment was at work in providing both the restriction on copyrighting facts/ideas and in the traditional doctrine of fair use after first sale. ________________ US Supreme Court CAMPBELL v. ACUFF-ROSE MUSIC No. 92-1292 (1994) http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=U10426 >From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts. . . ." U.S. Const., Art. I, 8, cl. 8.5 For as Justice Story explained, "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, 'while I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.' Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng.Rep. 679, 681 (K.B. 1803). In copyright cases brought under the Statute of Anne of 1710,6 English courts held that in some instances "fair abridgements" would not infringe an author's rights, see W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1105 (1990) (hereinafter Leval), and although the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124, without any explicit reference to "fair use," as it later came to be known, the doctrine was recognized by the American courts nonetheless." "In Folsom v. Marsh, Justice Story distilled the essence of law and methodology from the earlier cases: 'look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.' 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841). Thus expressed, fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Story's summary is discernible ..." ____________________ U.S. Supreme Court HARPER & ROW v. NATION ENTERPRISES 471 U.S. 539 (1985) http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=471&page=539 "Fair use was traditionally defined as "a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent." H. Ball, Law of Copyright and Literary Property 260 (1944) (hereinafter Ball). The statutory formulation of the defense of fair use in the Copyright Act reflects the intent of Congress to codify the common-law doctrine. 3 Nimmer 13.05. Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered. This approach was 'intended to restate the [pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.' H. R. Rep. No. 94-1476, p. 66 (1976)" "Even if the legislative history were entirely silent, we would be bound to conclude from Congress' characterization of 107 as a 'restatement' that its effect was to preserve existing law concerning fair use of unpublished works as of other types of protected works and not to 'change, narrow, or enlarge it.'" "Perhaps because the fair use doctrine was predicated on the author's implied consent to 'reasonable and customary' use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges of copying from an author's as yet unpublished works. Under common-law copyright, 'the property of the author . . . in his intellectual creation [was] absolute until he voluntarily part[ed] with the same.'" "In view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 21:13:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20420 for dvd-discuss-outgoing; Mon, 6 Mar 2000 21:13:02 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA20417 for ; Mon, 6 Mar 2000 21:13:01 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id TAA06475 for ; Mon, 6 Mar 2000 19:26:14 -0800 (PST) Message-ID: <38C47680.3CBDEB61@cdpage.com> Date: Mon, 06 Mar 2000 20:24:48 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker wrote: > On Mon, Mar 06, 2000 at 05:51:03PM -0700, Dana Parker wrote: > > > You can copy the .vobs, but I don't believe a program or utility exists to > > reassemble them and the other DVD Video program files into a program. You'd lose > > interactivity, menus, navigation control commands, etc. The commercial DVD Video > > players out there can only play programs in the DVD Video format, which requires a > > formatter to create. > > I havn't heard that before. Is that true? Isn't it possible to write the > decrypted files into a disk image which could be burned onto a DVD-R? Do > formatters exist that are available to the general public? Like I said, that's the most recent state of affairs I know about. Yes, formatters exist, as part of authoring tools, which are getting cheaper all the time. I'm just not sure if you could use one to reassemble a disassembled DVD. > It is (at least theoretically) possible to rip a whole DVD-ROM, bit for bit to > a disk image, which you could then send to a friend. He could (again > theoretically) mount this image as a virtual drive and then have DeCSS or *any* > other DVD decoder play it for him. True. Theoretically. > I'm not sure how much of this stuff is possible today, but certainly it could > happen without too much new software. The important thing to realize is that > DeCSS is no more helpfull than an officially licensed DVD player in this > situation, because the DVD image you send acts exactly like a real DVD. That's a good point, and one that should be stressed. DeCSS, BY ITSELF, only lets you decrypt, and either play back or store the decrypted files on a hard drive. I haven't tried it myself, but I repeat, the latest report I have is that what DeCSS lets you record and play back are individual 1 GB .vob files. Not disc images. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 21:18:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21687 for dvd-discuss-outgoing; Mon, 6 Mar 2000 21:18:13 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA21684 for ; Mon, 6 Mar 2000 21:18:12 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id TAA06802 for ; Mon, 6 Mar 2000 19:31:25 -0800 (PST) Message-ID: <38C477B7.C6D167A0@cdpage.com> Date: Mon, 06 Mar 2000 20:29:59 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <4.3.0.20000306212354.020251d0@pop.webcom.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan McCullagh wrote: > Are you sure? There's certainly <$500 DVD-building sw from companies like > Sonic. I wrote about some last year: > http://www.wired.com/news/technology/0,1282,32663,00.html > > Even if not, it's just a matter of following the spec, right? (assuming you > don't have to be NDA'd) No, I'm not positive, but the under $500 authoring SW isn't necessarily the tool you'd use. You do have to be NDA'd to own the spec. And reassembling a disassembled DVD is not the same process as creating one (authoring) from scratch. I can dig deeper on this, but I am on deadline myself. Most of the people I know in DVD are developers who are authoring their own (and own the spec), so are unlikely to have tried to reassemble a DVD decrypted with DeCSS. But I can ask around. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 21:35:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26167 for dvd-discuss-outgoing; Mon, 6 Mar 2000 21:35:26 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA26134 for ; Mon, 6 Mar 2000 21:35:24 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id TAA07719 for ; Mon, 6 Mar 2000 19:48:37 -0800 (PST) Message-ID: <38C47BBF.B605A519@cdpage.com> Date: Mon, 06 Mar 2000 20:47:11 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dana Parker wrote: > Like I said, that's the most recent state of affairs I know about. Yes, formatters exist, > as part of authoring tools, which are getting cheaper all the time. I'm just not sure if > you could use one to reassemble a disassembled DVD. yes, I am replying to myself. Here's what I found: On Feb 22, I wrote: What I'd like to know is if anyone has succeeded in reassembling a DVD title in its entirety (fully functional, with menus, subtitles, etc. intact) after using DeCSS to strip the CSS and copy the VOBs to a hard drive. The copyrighted "work" is the DVD title in its entirety. The disembodied VOB is just an excerpt. Unless you can put the whole thing together again.... And here's the answer: "Jason M. Felice" wrote: > >From what I understand, all the data streams have been extracted intact, and > audio/video syncing was the last piece of development effort that was done > before the injunction. The injunction is hindering our ability to produce > the rest of the functionality. > > In this case, more so than your above reference, bits is bits. If we have > people bright enough to disect and analize CSS, there is absolutely no way > we couldn't figure out how to interpret the rest of the data. > > Summary: > 1) I don't know if work has begun on this or not. > 2) It would be a pretty unbelievable claim that the authors of the DVD tools > were not interested in producing this functionality. > 3) There is no way we couldn't do this successfully barring legal restraint. > 4) I am highly doubtful that it has already been accomplished. > 5) The DVD tools most certainly comprise a "work in progress". No one claims > they are finished. > And then I wrote: OK, so not only can't you actually access DVD Video on a Linux system, you can't even really copy a DVD Video title. Where's the infringement? Where's the capability of infringement? You may have circumvented CSS (or not) but there's plenty of other things they could call copy protection or access control about DVD (like, the size, the format, the multiple audio channels). -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 21:52:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30283 for dvd-discuss-outgoing; Mon, 6 Mar 2000 21:52:06 -0500 Received: from mtiwmhc22.worldnet.att.net (imail@mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30280 for ; Mon, 6 Mar 2000 21:52:05 -0500 Received: from alaptop.hotwired.com ([12.78.116.108]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307040502.LEXU5318.mtiwmhc22.worldnet.att.net@alaptop.hotwired.com> for ; Tue, 7 Mar 2000 04:05:02 +0000 Message-Id: <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Mon, 06 Mar 2000 23:03:17 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, this list In-Reply-To: <38C47BBF.B605A519@cdpage.com> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interesting. What I'm most curious about, though, is why the injunction would legally require developers who are not defendants to stop, well, developing. Especially if they're non-US. Maybe Mr. Felice, if he's still here, can answer. -Declan At 20:47 3/6/2000 -0700, Dana Parker wrote, quoting "Jason M. Felice": > > >From what I understand, all the data streams have been extracted > intact, and > > audio/video syncing was the last piece of development effort that was done > > before the injunction. The injunction is hindering our ability to produce > > the rest of the functionality. > > > > In this case, more so than your above reference, bits is bits. If we have > > people bright enough to disect and analize CSS, there is absolutely no way > > we couldn't figure out how to interpret the rest of the data. > > > > Summary: > > 1) I don't know if work has begun on this or not. > > 2) It would be a pretty unbelievable claim that the authors of the DVD > tools > > were not interested in producing this functionality. > > 3) There is no way we couldn't do this successfully barring legal > restraint. > > 4) I am highly doubtful that it has already been accomplished. > > 5) The DVD tools most certainly comprise a "work in progress". No one > claims > > they are finished. > > > >And then I wrote: > >OK, so not only can't you actually access DVD Video on a Linux system, you >can't even >really copy a DVD Video title. Where's the infringement? Where's the >capability of >infringement? You may have circumvented CSS (or not) but there's plenty of >other >things they could call copy protection or access control about DVD (like, >the size, >the format, the multiple audio channels). From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 22:15:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03698 for dvd-discuss-outgoing; Mon, 6 Mar 2000 22:15:43 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA03640 for ; Mon, 6 Mar 2000 22:15:42 -0500 Received: from bugbug (max01-14.suba.com [206.69.121.206]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id WAA01179 for ; Mon, 6 Mar 2000 22:28:39 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] FAQ/List Index Idea Date: Mon, 6 Mar 2000 22:27:42 -0600 Message-ID: <000001bf87ed$7af46860$ce7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000306141748.N4628@linuxpower.org> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd be willing to work on this; I suppose I'd be pretty well suited anyway since I'm trying to organize all the posts anyway. (By the way, is anyone using the post-documents? Or is it just a big pratfall? wondering.) Or, if someone has already volunteered, I'd be glad to help. lemme know. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of > greslin@linuxpower.org > Sent: Monday, March 06, 2000 1:18 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] FAQ/List Index Idea > > > > Paul and I have been sending email back and forth offline lately, and an > idea came up we both thought should be thrown out for discussion. > > The FAQ is getting pretty big, and I think we all agree that it should > be primarily a summary of the current discussion rather than a > comprehensive > guide for beating 1201. But on another level, we really should begin > building some sort of document that provides references to individual > messages on the list for each FAQ question. > > What I'm thinking of here is to build a separate document with a list of > each current FAQ question. Each question would then be listed with a > brief list of important messages posted to the list; sort of a footnotes > index to the FAQ. It would, along with the search mechanism already in > place, provide an invaluable resource for someone wanting to do research > against our posts here. > > Any thoughts? If we do this (and I really think we should), someone else > will have to maintain it besides myself; I don't have the time to maintain > both it and the FAQ. I will, of course, be happy to coordinate > with whoever > wants to take this on in offline email. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 22:34:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA07531 for dvd-discuss-outgoing; Mon, 6 Mar 2000 22:34:42 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA07528 for ; Mon, 6 Mar 2000 22:34:41 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id XAA08468 for ; Mon, 6 Mar 2000 23:47:30 -0500 (EST) Message-Id: <4.1.20000306232110.00bb1100@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Mon, 06 Mar 2000 23:50:53 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: Update Re: [dvd-discuss] DVD is a program :) In-Reply-To: <20000306205919.S4628@linuxpower.org> References: <20000306235012.9243.qmail@web503.mail.yahoo.com> <20000306235012.9243.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have to agree with Rob that the GPL won't help here. An item can be "commercially significant" even if it's not sold for profit, by using (or displacing) other commercial products. (See Sony v. Universal 464 US at 442, "noncommercial time-shifting in the home" is a "commercially significant non-infringing use[]") At 08:59 PM 3/6/00 -0500, greslin@linuxpower.org wrote: >On Mon, Mar 06, 2000 at 03:50:12PM -0800, Bryan Taylor wrote: [...] >> I noticed you didn't respond to my (GPL + no cost) = non-commercial >> arguement. I think this is a powerful arguement, worth exploring. It >> could put DeCSS outside the scope of the commerce clause power and >> avoid (a)(2)(B,C). [...] >I also doubt that the "noncommercial = not under commerce clause" >argument would hold any water whatsoever, purely because while it itself >may not have been developed for commercial purposes, it will certainly >have a commercial impact. It already has. --Wendy --- Wendy Seltzer Fellow, Berkman Center for Internet & Society at Harvard Law School wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 6 23:05:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13955 for dvd-discuss-outgoing; Mon, 6 Mar 2000 23:05:26 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13951 for ; Mon, 6 Mar 2000 23:05:25 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id VAA12375 for ; Mon, 6 Mar 2000 21:18:37 -0800 (PST) Message-ID: <38C490D7.465A4A07@cdpage.com> Date: Mon, 06 Mar 2000 22:17:11 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan McCullagh wrote: > Interesting. What I'm most curious about, though, is why the injunction > would legally require developers who are not defendants to stop, well, > developing. Especially if they're non-US. Maybe Mr. Felice, if he's still > here, can answer. Maybe he can. I'm not one of the few, the proud, the open source developers, but from what I've gathered, much of the work goes on in public and by collaboration. Note that he didn't say that the injunction had legally (or otherwise) stopped development, but that it had hindered it. It could very well be that development in the past few months has produced a set of tools, but whatever has been developed hasn't been made public for peer review. I think it's understandable if no one is talking about it for public consumption. After all, being outside the US didn't save Jon Johansen. This is just an example of the chilling effects of the DMCA on the progress of science and the useful arts. You might just want to point that out in your articles. ;-) -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 00:13:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23686 for dvd-discuss-outgoing; Tue, 7 Mar 2000 00:13:55 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA23683 for ; Tue, 7 Mar 2000 00:13:54 -0500 Received: (qmail 28086 invoked by uid 60001); 7 Mar 2000 06:26:53 -0000 Message-ID: <20000307062653.28085.qmail@web507.mail.yahoo.com> Received: from [24.28.154.65] by web507.mail.yahoo.com; Mon, 06 Mar 2000 22:26:53 PST Date: Mon, 6 Mar 2000 22:26:53 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Re: copyleft To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > Actually, the GPL is not a copyright notice.. it is a software > license agreement. That makes it a binding contract, a > more-than-slightly different animal than a mere expression of > copyright. A software licence IS a copyright licence. Perhaps you should quit trying to invent new forms of intellectual property. Why do you think the GPL is called 'copyleft'? What section of the law do you think you sue under if the licence is ignored? A licence may or may not be a contract, depending on if it meets the definition for a contract: offer, acceptance, and mutual consideration. In the case of the GPL, I don't see where the consideration is? What does the user give up that they already had? Agreeing not to do things you couldn't do otherwise does not count. Unless the user gives up something, it's not a contract, it a gift. I suppose if you did pay the author for the licence itself, then it would be a contract, but this is an acedemic difference. You can read about contracts at: http://prof.findlaw.com/contracts/index.html > The GPL explicitly states that a number of limitations apply to the > manner in which GPL software is used; I won't go into them here > because I already have, and because anyone can read it for themselves: > > www.gnu.org/copyleft/gpl.html You must have missed this part: "We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software." Hmm. It's a licence to copy, distribute, and make derivitive works. These are covered under 17 USC 106, which supercedes any competing state laws. But you say it's not a copyright licence, even though Title 17 covers computer programs. Please explain. Oh, and don't forget to search in vain for citation. > Feel free to cite any legal reference whatsoever that states that a > copyright notice is a legal contract. It may or may not be a contract. You are the one claiming the GPL is a contact, so you should be providing the citations to prove your point. I could care less whether the copyright licence is a contract. Even if it is, it wouldn't be actionable anywhere but in federal copyright courts. > Incidentally, if the GPL were a copyright notice and not a legal > contract, GPL clause 5 would be entirely unnecessary; you typically > are not given the option of not agreeing to a copyright notice. I'm not sure it IS necessary. Suppose it was removed. What would the impact be? I think it's just explaination and commentary. As I said above, unless the user gives up something, the GPL is a gift. A gift, need not be accepted. By the way, what law do YOU think clause 5 is refering too? Hmmm... __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 00:33:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28116 for dvd-discuss-outgoing; Tue, 7 Mar 2000 00:33:34 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA28113 for ; Tue, 7 Mar 2000 00:33:33 -0500 Received: from bugbug (max01-14.suba.com [206.69.121.206]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA04403 for ; Tue, 7 Mar 2000 00:46:30 -0600 (CST) From: "sparky" To: Subject: [dvd-discuss] ACCESS as USE - long! sorry! Date: Tue, 7 Mar 2000 00:45:33 -0600 Message-ID: <000101bf8800$bc89fac0$ce7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000307032112.19996.qmail@web506.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've been going over the posts from the DeCSS out of scope string, and thinking about the various issues discussed there ("authority", "access control circumvention necessary to exercise fair use", and significantly, a notion that one exception to 1201 would nullify 1201 completely) and I thought some of the arguments I'd formulated might be worth starting a string (a fight?) over. The ideas would rely heavily on cases such as the one Bryan has cited in Fair use not Statutory, the 2nd (thank you Bryan!): U.S. Supreme Court HARPER & ROW v. NATION ENTERPRISES 471 U.S. 539 (1985) http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=471&pa ge=539 As this is a post, this will be as short and sweet as I can make it, but there's a lot to cover. Firstly I've observed that many take the all-or-nothing approach to arguing against 1201. I don't think this is warranted and plays into the bad language of 1201. As the case Bryan cited states: "Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered." This is the impression I've had myself in reading through cases. But as we've all noted, and been panicked by, the language of 1201 is sweeping, esp. in 1201(b) (fewer apparent qualifications). Reasoning toward an argument: 1) 1201 states sweepingly trafficking wrong. 2) only method of defending trafficking is that it is not trafficking. 3) trafficking can only be not trafficking if item trafficked is not the item which is not to be trafficked, ie circumvention device. 4) current item in question circumvents without question. 5) 1201 states, somewhat less sweepingly(t-f?), circumvention wrong. 6) therefore device can only be not circumvention device if it is evaluated and found not to be said. 7) maybe only way to do this is by situational evaluation of any access (use of device). 8) We could push for the court to understand ACCESS as a subcategory of USE of works, which would allow an understanding of access as meriting factored evaluation on a case-by-case basis along fair use lines. Thus: show access is use, and eventually, maybe, we can turn the trafficking case into a freedom to distribute information case. Something Rob said made me think: that we should use the vagueness of the law? Can't remember exactly. But I think the approach in the case could be: Here we have with access what is essentially a brand new category of use of works. It is not new in itself, but tech has brought a never-before considered aspect of it to the fore. For this point I will go into detail on the web essay or in future posts. The newness, however, was appreciated by the law's authors. We could argue that the phrasing of the law is the way it is because the law's authors did not want to disrupt previous state of legislation. Several points can be made regarding the vagueness/sweepingness of the law's language, the caveats regarding fair use in the law's wording, and the fact that the legislative history and concepts of fair use, which would lead us to believe that the an act of access should not be interpreted in a sweeping way - that the language of the law should not be read without gloss, that the concept of ACCESS is still very much open to interpretation. If we (and the judge, hopefully) are open to this possibility? necessity?, if we see the contradiction that exists between the sweeping, unbalanced language of 1201, and the more moderate, "limited monopoly" viewpoint which exists in copyright law, then there is room to argue that access should be interpreted as another instance of use, and therefore to be weighed as other acts of use are weighed. Specific points: -the caveat re fair use, 1201(c). 1201 is not to change the current state of fair use. In particular, if fair use is understood by the law to be evaluated on a case-by-case basis, to have sweeping criminalization of an act which occurs within the realm (other legal term?) of copyright law seems to overturn this studied position. -Congress was not willing to be specific regarding instances of access, and empowered the LOC to review types of works for exemption from 1201. This implies that Congress recognizes that there are potentially many sorts of access, and that some may be permitted while others may not be. This implies that each should be evaluated. The established method of doing this - or, if you will, AN established method for just this sort of evaluation - is application of the fair use factors. -1201(b) includes factors for determining whether a device is to be evaluated as a circumventing device, and these factors, like the factors to be applied for fair use, are commercial ones. While there is no reference there to the four factors, and while there may be something arguable about the fact that there are no evalution factors mentioned in 1201(a), the fact that we are talking about commercial defraudation (word?) immediately raises the history of fair use, which is essentially concerned with that. -the "authority" of the copyright holder is not defined; we may understand, therefore, that it refers to the authority of the copyright holder as understood in standing copyright law. To impose a new sort of "authority" without describing/codifying it explicitly is surely not the intended interpretation of this law. -the court should understand ACCESS as a subcategory of USE, as that is what it is, after all. At least, no ruling says it isn't. No one's ever ruled on it before. -the argument could be made to the judge which is being made by many persons, including library associations: that the law "as it stands" - or, for us, as it LITERALLY stands, reading without gloss - seriously unbalances the limited monopoly which copyright law has sanctioned for the copyright holder. Therefore a more studied, by-instance approach is wiser and more just. -finally, we would push for an understanding that, as the law is currently written in a way which takes into zero consideration the possibility that an anti-access measure may be in place on a work on which it should not be (note, no mention of works with anti-access measures passing into the public domain), before an act of "circumvention" can be determined to be illegal, the actual act of access must be evaluated as to its legality. therefore: 1) access = use, vagueness of law allows evaluation of each instance of access as use. 2) access understood not to be, by definition, illegal. 3) anti-access measures may be extant on works they should not be on; or, more to the point, they could potentially restrict access which is not illegal. This is determined by evaluation of instance. 4) trafficking is only trafficking if item trafficked is purely for the purpose of illegal acts of access. Not all acts of access are illegal. 5)This device can be used in a legal way. 6) blah blah blah. maybe? Note that these points are all marshalled for an argument made PRIOR to any discussion of the actual actions of the defendants (I think). The argument is an attempt to get the judge to permit the case to be, basically, a fair use case. It is an attempt to use the vagueness of the law in our favor. One point that Rob thought was good for attack was that access control circumvention could be shown to be necessary to exercise fair use. I am stating the same thing, but with a slight twist (I think). If we argue that access control can be necessary to fair use, it feels (I know, I know.. FEELINGS..) like we are saying that access control is always okay, but sometimes fair use is okay; it feels like the law will still unbalance use of works. It feels like we are allowing ourselves to remain hindered by the vague language of 1201 when this may not be necessary. Furthermore how are you going to defend in a trafficking case from this direction when there is no use involved? If the argument is made that access is a category of use and thus that any specific access should be evaluated for its legality, we might turn the trafficking case into a case re freedom to distribute information. Okay. I'm really sorry I don't have citations here, but Bryan's seemed to address the fundamental idea I've been playing with, in a prescriptive way, and so I decided to post this. also, I'm nt trying to get this to be adopted as "the argument". It seems tenable, but I realize the judge may just get a good laugh over it and so I expect there must be backup. It would be a preliminary argument, as I've imagined it here, anyway. And I'm sorry this short post is so long. So I've pulled my pants down. Kick my ass. And remember, we're a big fat help desk debugging the law. :) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 00:43:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31264 for dvd-discuss-outgoing; Tue, 7 Mar 2000 00:43:56 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA31237 for ; Tue, 7 Mar 2000 00:43:54 -0500 Received: (qmail 24219 invoked by uid 60001); 7 Mar 2000 06:56:54 -0000 Message-ID: <20000307065654.24218.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Mon, 06 Mar 2000 22:56:54 PST Date: Mon, 6 Mar 2000 22:56:54 -0800 (PST) From: Bryan Taylor Subject: Re: Update Re: [dvd-discuss] DVD is a program :) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Wendy Seltzer wrote: > I have to agree with Rob that the GPL won't help here. An item can > be "commercially significant" even if it's not sold for profit, by > using (or displacing) other commercial products. I think Rob pretty much proved his point, but your quote below ices it. > (See Sony v. Universal 464 US at 442, "noncommercial time-shifting in > the home" is a "commercially significant non-infringing use[]") Well, so much for that arguement. I think the idea (from Wickard v Filburn) that Congress can use the commerce power to ban the displacment of commerce with "do-it-yourself-ism" is absurd, even tyranical, but I don't think I'll be getting my way on this. Maybe everybody but Thomas will get the flu for the next commerce clause case. Basically, that's the message of the DMCA in a nutshell. Maybe the limitations of the copyright clause can somehow interfere here, but basically, Congress weilds a police state creating power in the commerce clause and will use it to advance the corporatist agenda of the monied interests in Washington, who in turn make sure that the incumbants get re-elected, and that the people are entertained. I'm getting cynical, I'd better go to bed. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 04:56:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07899 for dvd-discuss-outgoing; Tue, 7 Mar 2000 04:56:45 -0500 Received: from mtiwmhc26.worldnet.att.net (imail@mtiwmhc26.worldnet.att.net [204.127.131.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA07896 for ; Tue, 7 Mar 2000 04:56:44 -0500 Received: from alaptop.hotwired.com ([12.78.126.233]) by mtiwmhc26.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307110943.BJDZ1630.mtiwmhc26.worldnet.att.net@alaptop.hotwired.com> for ; Tue, 7 Mar 2000 11:09:43 +0000 Message-Id: <4.3.0.20000307060551.02636b70@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Tue, 07 Mar 2000 06:07:55 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist In-Reply-To: <38C490D7.465A4A07@cdpage.com> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think it's reasonable to say there is a chilling effect. The problem is that doesn't get you very far: If such activities *should* be illegal (as the MPAA would prefer), it is entirely just and proper in their minds that there should be a chilling effect. In other words, it is appropriate for the law to deter what should be illegal activities. That general rule doesn't answer what should be illegal in the first place. -Declan At 22:17 3/6/2000 -0700, Dana Parker wrote: >developed hasn't been made public for peer review. I think it's >understandable if >no one is talking about it for public consumption. After all, being >outside the US >didn't save Jon Johansen. > >This is just an example of the chilling effects of the DMCA on the progress of >science and the useful arts. You might just want to point that out in your >articles. ;-) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 07:09:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA32076 for dvd-discuss-outgoing; Tue, 7 Mar 2000 07:09:02 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA32073 for ; Tue, 7 Mar 2000 07:09:00 -0500 Received: from travel-net.com (trj22.travel-net.com [207.176.160.22]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id IAA03621 for ; Tue, 7 Mar 2000 08:22:17 -0500 Message-ID: <38C50274.93750F4@travel-net.com> Date: Tue, 07 Mar 2000 08:21:56 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.7 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits,thislist References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> <4.3.0.20000307060551.02636b70@pop.webcom.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You usually get further when you put "chilling effect" and "free speech" close to each other in the same sentence. Then, to show that there should be a chilling effect, someone has to work hard to show why its NOT a problem to chill, and you get into specifics like hate crime, specific organizations which have been deemed illegal, etc. Were talking about shifting presumptions, burden of proof etc. But I agree that chilling effect as-is doesnt go far. Declan McCullagh wrote: > > I think it's reasonable to say there is a chilling effect. The problem is > that doesn't get you very far: If such activities *should* be illegal (as > the MPAA would prefer), it is entirely just and proper in their minds that > there should be a chilling effect. > > In other words, it is appropriate for the law to deter what should be > illegal activities. That general rule doesn't answer what should be illegal > in the first place. > > -Declan > > At 22:17 3/6/2000 -0700, Dana Parker wrote: > >developed hasn't been made public for peer review. I think it's > >understandable if > >no one is talking about it for public consumption. After all, being > >outside the US > >didn't save Jon Johansen. > > > >This is just an example of the chilling effects of the DMCA on the progress of > >science and the useful arts. You might just want to point that out in your > >articles. ;-) -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 09:15:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA26613 for dvd-discuss-outgoing; Tue, 7 Mar 2000 09:15:17 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA26610 for ; Tue, 7 Mar 2000 09:15:15 -0500 Received: (qmail 6512 invoked from network); 7 Mar 2000 15:24:09 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 7 Mar 2000 15:24:09 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id HAB28064; Tue, 7 Mar 2000 07:28:28 -0800 Date: Tue, 7 Mar 2000 07:28:28 -0800 Message-Id: <200003071528.HAB28064@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist Cc: declan@wired.com Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Can you saw separation of powers? Neither buyer, vendor, nor distributor should be able to screw the other. Just something that occured to me when I wrote a letter to Amazon and O'Reilly, and a few others as to what needs to happen. Rares Declan McCullagh wrote: >I think it's reasonable to say there is a chilling effect. The problem is >that doesn't get you very far: If such activities *should* be illegal (as >the MPAA would prefer), it is entirely just and proper in their minds that >there should be a chilling effect. > >In other words, it is appropriate for the law to deter what should be >illegal activities. That general rule doesn't answer what should be illegal >in the first place. > >-Declan > > >At 22:17 3/6/2000 -0700, Dana Parker wrote: >>developed hasn't been made public for peer review. I think it's >>understandable if >>no one is talking about it for public consumption. After all, being >>outside the US >>didn't save Jon Johansen. >> >>This is just an example of the chilling effects of the DMCA on the progress of >>science and the useful arts. You might just want to point that out in your >>articles. ;-) > > > > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 09:19:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA27513 for dvd-discuss-outgoing; Tue, 7 Mar 2000 09:19:23 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA27510 for ; Tue, 7 Mar 2000 09:19:23 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id KAA25375; Tue, 7 Mar 2000 10:32:23 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA02367; Tue, 7 Mar 2000 10:32:22 -0500 (EST) Date: Tue, 7 Mar 2000 10:32:22 -0500 (EST) Message-Id: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Reverse-engineering precedents Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One of Robin Gross's tech issues was: > 4. What are other concrete examples are there of occasions in > which reverse engineering has been critical to achieving a > technological break through in an industry? Are there examples of > other attempts to prevent such activity and what was the result? Here are a few potentially relevant examples. 1) Connectix vs. Sony --- Connectix wrote a Macintosh emulator for the Sony Playstation, based on reverse engineering. Sony got a preliminary injunction blocking sales of the emulator, but on Feb. 10th of this year, the injunction was reversed by the Ninth Circuit Court of Appeals; their ruling is at: http://www.ce9.uscourts.gov/web/newopinions.nsf/f606ac175e010d64882566eb00658118/06d1e0893fdee11688256881006296b8?OpenDocument This ruling is based on an earlier ruling in Sega v. Accolade, 1992, which again ruled that reverse engineering is protected fair use. That's Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1993); I believe it's in findlaw.com at See http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/9th/2/977/1510.html 2) Samba. This is a widely used, open source implementation of the native Windows file sharing protocols for Unix (including Linux). It allows, e.g., Red Hat Linux and Sun's Solaris to function effectively as file servers in a mostly-Microsoft environment. It's extensively based on reverse engineering. I'm not aware of any litigation here, but it might be useful as an example of the use of reverse engineering in developing useful open source products. 3) The original IBM PC BIOS. This is the basic operating system software which was installed in the ROMs of the original IBM PC, and subsequently cloned in a clean-room reverse engineering effort by Compaq (and subseqeuntly others). The reverse engineering effort was required to make fully compatible PCs, and was crucial to the development of the current competitive market for PC compatible computers. 4) Getting back to video games, we have Atari v. Nintendo, 1992 --- in this case, Atari produced games that would work on a Nintendo console by copying a 25-byte security code, and Nintendo claimed (among other things) that duplicating the security code was copyright infringement, a claim that the court rejected because the security code was purely functional and not within the scope of copyright. I *believe* a full citation for this case is: ATARI GAMES CORP. and TENGEN, INC., Plaintiffs-Appellants, v. NINTENDO OF AMERICA INC. AND NINTENDO CO., LTD., Defendants-Appellees., 91-1293, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, 1992 U.S. App. LEXIS 21817; 24 U.S.P.Q.2D (BNA) 1015; Copy. L. Rep. (CCH) P26,978; 1992-2 Trade Cas. (CCH) P69,969; 92 Daily Journal DAR 12936, September 10, 1992, Decided. though I can't fish it out of findlaw.com. This case involved nothing like the separate statutory prohibition of "circumvention" in 17 USC 1201, but it might at least be useful in demonstrating that that section does create a new form of protected intellectual property, if someone needs to argue that point. I'm not sure I'd want to stand up in court and call any of these a "technological breakthrough", but they are all examples where products developed through reverse engineering led to significant benefit for consumers, and where there really was no other feasible way to develop the product. IANAL, so don't take anything I say about these cases as gospel. For the others, I've relied, among other things, on a white paper from the web site of Lucash, Gesmer and Updegrove, a Boston law firm with a high tech practice --- http://www.lgu.com/cr46.htm --- (from which I poached the description of the Atari case) and it might also be interesting to look at a paper on international issues from Smith, Lyons at http://199.202.237.185/Publications/Articles/IT_99_10_2.htm I can't endorse either of these, of course, but they're written by folks with more legal training than I have. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 09:48:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01297 for dvd-discuss-outgoing; Tue, 7 Mar 2000 09:48:14 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01294 for ; Tue, 7 Mar 2000 09:48:13 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id LAA11960 for ; Tue, 7 Mar 2000 11:01:12 -0500 (EST) Message-Id: <4.2.2.20000307105518.00b55dd0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 07 Mar 2000 11:01:07 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] list index In-Reply-To: <20000305195411.A5505@localhost> References: <4.2.2.20000305145643.00aa0100@law.harvard.edu> <20000303205021.A915@linuxpower.org> <000001bf864e$9ad848e0$fb7945ce@bugbug.WinNATDomain> <4.2.2.20000305145643.00aa0100@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:54 PM 3/5/00 -0700, fenimore@roadrunner.com wrote: >Could we have majordomo insert something like a: > >X-URL: http://eon.law.harvard.edu/archive/dvd-discuss/msg01234.html > >or > >X-DVD-Discuss-Index: 01234 > >header into each message, so that we can have a stable cross-indexing >between messages and also indexing into the archive from the FAQ, both >using a single index key? I think an autoincrementing counter would do the trick, and it sounds like a good idea. Is anyone familiar enough with the internals of majordomo to add this feature? --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 09:55:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03167 for dvd-discuss-outgoing; Tue, 7 Mar 2000 09:55:47 -0500 Received: from dial103.roadrunner.com (dial103.cybermesa.com [209.12.75.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA03131 for ; Tue, 7 Mar 2000 09:55:43 -0500 Received: (from paul@localhost) by dial103.roadrunner.com (8.8.7/8.8.7) id JAA00935 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 09:11:46 -0700 Date: Tue, 7 Mar 2000 09:11:45 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist Message-ID: <20000307091145.A730@localhost> References: <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> <38C490D7.465A4A07@cdpage.com> <4.3.0.20000307060551.02636b70@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.3.0.20000307060551.02636b70@pop.webcom.com>; from declan@wired.com on Tue, Mar 07, 2000 at 06:07:55AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here is my personal understanding of the issue you are getting at with "should be illegal". Whether or not chilling is acceptable has everything to do with which Constitutional authority was used to enact 17USC1201 ("DMCA"). 1. If you (for purposes of argument) say Congress' copyright power justifies the DMCA and you want to argue that CSS is "partial" copy control, you can't honestly seperate that function from access control. Once you control access, you control performance. CSS is also performance control. This "copy control" comes at the price of needing the copyright holder to "authorize" a performance. Please note that 17 USC 106 does not reserve _private_ performance as an exclusive right of a copyright holder. 17 USC 1201(a) doesn't define "authority", so the statute doesn't speak directly to what constitutes authorization to access. Congress could have said, "access for private performance is never circumvention." They didn't say that. Nor did they make an explicit provision in the DMCA saying that private performance (or access) is regulated. When Congress banned basically all "trafficking" (the subject of the NY suit) in circumvention devices, they further confused the issue. (a)(3) talks about "authority of copyright holder", but (a)(2) bans all "circumvention" devices. The people who hold copyright are not the people who hold the CSS patent, manufacture players or much of anything else. So who says I can or cannot /perform this DVD/ read this book/ what ever? The player manufacturers? But they aren't the copyright holder. Ok then, the copyright holder. Right? Then who decides which devices are players, and which are circumvention devices? The manufacturer? I see a big problem here. Perhaps one could make some kind of argument that "chilling" is "not inconsistent" with "promotes progess", but in the context of the above problem I'd be really careful about pushing that line of reasoning. 2. If you say Congress' commerce or "necessary and proper" power was used to enact the DMCA, then any argument about "chilling" starts to look fatal for the DMCA. Commerce per se and "necessary and proper" don't cut the mustard against the First Amendment. I hope this gives a flavor for why _I_ object to the argument that access circumvention "should" be illegal if it provides a modicum of "copy control". This isn't a service (like cable TV) that is being "stolen"; one is reading a book or watching a movie after first-sale of the copyrighted work. One happens to need a "technological" device to do so. The fact that a "partial" "copy control" system is stomping my (previously) absolute liberty to read published material is a problem. Note, even if you buy the argument that CSS has something to do with copy control (I don't buy it) it is only _partial_ copy control. That absolute right to read after first-sale is now conditional (or even perhaps not even a right) in exchange for a little temporary safety. Industrial pirates still exist. There are other Constitutional problems with 1201, but they don't directly impact the issue you're talking about, so I'll stop here. Paul Fenimore On Tue, Mar 07, 2000 at 06:07:55AM -0500, Declan McCullagh wrote: > I think it's reasonable to say there is a chilling effect. The problem is > that doesn't get you very far: If such activities *should* be illegal (as > the MPAA would prefer), it is entirely just and proper in their minds that > there should be a chilling effect. > > In other words, it is appropriate for the law to deter what should be > illegal activities. That general rule doesn't answer what should be illegal > in the first place. At 22:17 3/6/2000 -0700, Dana Parker wrote: >developed hasn't been made public for peer review. I think it's >understandable if >no one is talking about it for public consumption. After all, being >outside the US >didn't save Jon Johansen. > >This is just an example of the chilling effects of the DMCA on the progress of >science and the useful arts. You might just want to point that out in your >articles. ;-) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 10:39:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA14829 for dvd-discuss-outgoing; Tue, 7 Mar 2000 10:39:54 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA14826 for ; Tue, 7 Mar 2000 10:39:53 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id LAA11978; Tue, 7 Mar 2000 11:52:53 -0500 (EST) Message-Id: <4.2.2.20000307110202.00b42510@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 07 Mar 2000 11:52:49 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Cc: dvd-discuss@eon.law.harvard.edu In-Reply-To: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good reverse engineering examples. Let's press ahead for more of these. At 10:32 AM 3/7/00 -0500, rst@ai.mit.edu wrote: >One of Robin Gross's tech issues was: > > > 4. What are other concrete examples are there of occasions in > > which reverse engineering has been critical to achieving a > > technological break through in an industry? Are there examples of > > other attempts to prevent such activity and what was the result? > >Here are a few potentially relevant examples. > >1) Connectix vs. Sony --- Connectix wrote a Macintosh emulator for the > Sony Playstation, based on reverse engineering. Sony got a > preliminary injunction blocking sales of the emulator, but on > Feb. 10th of this year, the injunction was reversed by the Ninth > Circuit Court of Appeals; their ruling is at: > > >http://www.ce9.uscourts.gov/web/newopinions.nsf/f606ac175e010d64882566eb006 >58118/06d1e0893fdee11688256881006296b8?OpenDocument There's good language in Sony v. Connectix about the necessity of reverse engineering to gain access to unprotected functional elements of the software. Good mainly to emphasize the change wrought by the DMCA -- Connectix was permitted to infringe the copyright, copying the entire Sony BIOS, in order to get at its functional parts. Where users are denied access to uncopyrightable elements on a DVD by an "access control device" rather than by the need to infringe copyright, however, the block is absolute and the copyright balance is destroyed. Functional elements, as well as expressive ones, become the monopoly of the copyright holder. "The fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs ... consistent with the 'ultimate aim [of the Copyright Act], to stimulate artistic creativity for the general public good.'" Sony v. Connectix at 1711, (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984). I imagine that Sony can now take another tack, saying that its BIOS is an "access control device" protecting the copyrighted works on Playstation games. What happens then? Is Connectix's Virtual Game Station in the same boat as DeCSS? --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 10:49:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA17571 for dvd-discuss-outgoing; Tue, 7 Mar 2000 10:49:55 -0500 Received: from cobain.rowan.edu (cobain.rowan.edu [150.250.64.40]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA17568 for ; Tue, 7 Mar 2000 10:49:54 -0500 Received: from groupwise.rowan.edu (groupwise.rowan.edu [150.250.64.17]) by cobain.rowan.edu (8.9.3/8.9.3) with SMTP id MAA22373 for ; Tue, 7 Mar 2000 12:02:53 -0500 (EST) Received: from ROWANDOM-Message_Server by groupwise.rowan.edu with Novell_GroupWise; Tue, 07 Mar 2000 12:02:51 -0500 Message-Id: X-Mailer: Novell GroupWise Internet Agent 5.5.2.1 Date: Tue, 07 Mar 2000 12:02:32 -0500 From: "Samuel Greenfeld" To: Subject: Re: [dvd-discuss] Reverse-engineering precedents Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Disposition: inline Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id KAA17569 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >>> rst@ai.mit.edu 03/07/00 10:32AM >>> > Here are a few potentially relevant examples. > > 1) Connectix vs. Sony --- Connectix wrote a Macintosh emulator for the > Sony Playstation, based on reverse engineering. Sony got a > preliminary injunction blocking sales of the emulator, but on > Feb. 10th of this year, the injunction was reversed by the Ninth > Circuit Court of Appeals; their ruling is at: On a related note, also see Sony v. Bleem LLC - another PSX emulation case where the preliminary injunction attempt failed. I do not know of any links to this case offhand, but interestingly enough, it is being handled by the same judge as Connectix's case (except for the appeal). Just like many people here, I am not a lawyer, so use this info at your own risk. For the record, I should note that I could potentially end up involved in one or more cases related to these, so I can not comment further lest a lawyer get mad at me. --- SJG What? You were expecting a signature here? From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 11:04:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21028 for dvd-discuss-outgoing; Tue, 7 Mar 2000 11:04:06 -0500 Received: from dial214.roadrunner.com (dial214.cybermesa.com [209.12.75.214]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA20902 for ; Tue, 7 Mar 2000 11:04:00 -0500 Received: (from paul@localhost) by dial214.roadrunner.com (8.8.7/8.8.7) id KAA01540 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 10:20:01 -0700 Date: Tue, 7 Mar 2000 10:20:00 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] list index Message-ID: <20000307101959.A1315@localhost> References: <4.2.2.20000305145643.00aa0100@law.harvard.edu> <20000303205021.A915@linuxpower.org> <000001bf864e$9ad848e0$fb7945ce@bugbug.WinNATDomain> <4.2.2.20000305145643.00aa0100@law.harvard.edu> <20000305195411.A5505@localhost> <4.2.2.20000307105518.00b55dd0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000307105518.00b55dd0@law.harvard.edu>; from wendy@seltzer.com on Tue, Mar 07, 2000 at 11:01:07AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 11:01:07AM -0500, Wendy Seltzer wrote: > At 07:54 PM 3/5/00 -0700, fenimore@roadrunner.com wrote: > >Could we have majordomo insert something like a: > > > >X-URL: http://eon.law.harvard.edu/archive/dvd-discuss/msg01234.html > > > >or > > > >X-DVD-Discuss-Index: 01234 > > > >header into each message, so that we can have a stable cross-indexing > >between messages and also indexing into the archive from the FAQ, both > >using a single index key? > > I think an autoincrementing counter would do the trick, and it sounds like > a good idea. Is anyone familiar enough with the internals of majordomo to > add this feature? One additional thought --- we're running at 40+epsilon messages per day. If this holds up for eight months, we're going to need more than 5 digits in the filename/index number. Better make it 6 digits to be on the safe side. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 11:52:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00965 for dvd-discuss-outgoing; Tue, 7 Mar 2000 11:52:17 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA00962 for ; Tue, 7 Mar 2000 11:52:16 -0500 Received: (qmail 10322 invoked by uid 502); 7 Mar 2000 18:07:12 -0000 Date: Tue, 7 Mar 2000 13:07:12 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000307130712.E10059@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <4.2.2.20000307110202.00b42510@law.harvard.edu>; from Wendy Seltzer on Tue, Mar 07, 2000 at 11:52:49AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: > > I imagine that Sony can now take another tack, saying that its BIOS is an > "access control device" protecting the copyrighted works on Playstation > games. What happens then? Is Connectix's Virtual Game Station in the same > boat as DeCSS? I sort of doubt it. I was looking over the SvC decision the other day, for a question on the FAQ. Connectix has a number of factors on it's side that DeCSS doesn't have: 1. Legitimate reverse engineering via mapping the function space, rather than by direct disassembly. The decision seems to indicate that had they arrived at their final product via direct disassembly, the court decision might well have come down against them. I think this distinction is an extremely important one - according to the judge's findings of fact, Connectix did not directly examine Playstation code in the process of trying to emulate it. 2. The Connectix player only plays about 100 or so games. This tends to support point #1; had the player been able to play *all* the games, then there would have been considerable question that Connectix had not directly disassembled code. Limited functionality is a pretty good indicator that the function space had been RE'd and not the implementation itself. Now if we could show that DeCSS only scrambles *some* DVD's, then this could be considered indirect evidence that there was no intellectual property theft. Unfortunately I don't think that is the case. 3. A BIOS would probably be very difficult to label as an access control device, on a technical level. This would be the hardware equivalent of Microsoft calling the Windows API an access control device; yes, they could do it, but it would be an uphill fight all the way. You could march a line of expert witnesses five miles long into the court room to refute it. To begin with, the primary function of a BIOS is not to prevent unauthorized access. 4. While the BIOS would be difficult to call an access control device, there has never been a question since day one that CSS *is* an access control device. Very little backpedalling necessary. I'm of course always open to being wrong. But this is how it seems to me, after reading the 2/10 decision. The real killer here is the reverse engineering issue. A number of people are suggesting that the Xing player was "reverse engineered" by direct disassembly rather than mapping the function space in a clean-room scenario. If this is truly the case, then it puts DeCSS into a completely different game than Connectix, because then it can be claimed as design theft or something similar. Pardon me for interrupting. :) Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 12:33:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11435 for dvd-discuss-outgoing; Tue, 7 Mar 2000 12:33:12 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA11432 for ; Tue, 7 Mar 2000 12:33:11 -0500 Received: (qmail 10467 invoked by uid 502); 7 Mar 2000 18:48:08 -0000 Date: Tue, 7 Mar 2000 13:48:08 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Filing a strategy? Message-ID: <20000307134808.B10410@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just read an article over on Wired by Declan, indicating that our good friends the EFF attorneys have filed a strategy outline with the court in Connecticut regarding the Hughes case. The article sort of implies that it's a public filing - the contents of the filing are described in the article - but I don't see any mention of this on either EFF's site or OpenDVD.org. Is this a public filing? And if so, can we expect something to be on the web shortly? http://www.wired.com/news/politics/0,1283,34779,00.html Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 13:35:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26892 for dvd-discuss-outgoing; Tue, 7 Mar 2000 13:35:10 -0500 Received: from dial144.roadrunner.com (dial144.cybermesa.com [209.12.75.144]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26876 for ; Tue, 7 Mar 2000 13:35:03 -0500 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id MAA02825 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 12:51:07 -0700 Date: Tue, 7 Mar 2000 12:51:06 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000307125105.A2393@localhost> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000307130712.E10059@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 07, 2000 at 01:07:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 01:07:12PM -0500, greslin@linuxpower.org wrote: > On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: > > > > I imagine that Sony can now take another tack, saying that its BIOS is an > > "access control device" protecting the copyrighted works on Playstation > > games. What happens then? Is Connectix's Virtual Game Station in the same > > boat as DeCSS? > > I sort of doubt it. I was looking over the SvC decision the other day, for > a question on the FAQ. Connectix has a number of factors on it's side that > DeCSS doesn't have: > > 1. Legitimate reverse engineering via mapping the function space, rather > than by direct disassembly. The decision seems to indicate that had they > arrived at their final product via direct disassembly, the court decision > might well have come down against them. I think this distinction is an > extremely important one - according to the judge's findings of fact, > Connectix did not directly examine Playstation code in the process of > trying to emulate it. Sorry, I still haven't read Sony v. Connectix. Are you saying that in order to map the function-space they simply made calls to the BIOS entry points with varying number of arguments, and waited for the thing to crash? If so, getting the functionality of the entry point must be even more fun. [ ... ] > 3. A BIOS would probably be very difficult to label as an access control > device, on a technical level. This would be the hardware equivalent of > Microsoft calling the Windows API an access control device; yes, they could > do it, but it would be an uphill fight all the way. You could march a > line of expert witnesses five miles long into the court room to refute it. > To begin with, the primary function of a BIOS is not to prevent > unauthorized access. "Primary" purpose keeps coming up with regard to access control. Primary purpose isn't an issue for access control. "Primarily" language in 1201 only applies to circumvention. The language in (a)(3)(B) says nothing about "primary": (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. Concievably, this means a "minor purpose" of access control turns on 1201(a). The "primarily" stuff is in 1201(a)(2)(A) and (b)(1)(A). I agree that as a technical matter, calling a whole BIOS "access control" is unreasonable, but 1201 is plenty unreasonable already. I'm not sure Sony couldn't do what Wendy is suggesting. Would the magic numbers in an ioctl() call turn on 1201? This question has a lot to do with another thread --- are region codes a technological access control measure? There are definitely differences between region codes and magic numbers. In one case, you read the data from the thing being access controlled and decide what to do. In the ioctl() case, you are supplying data to the thing being protected (the kernel + the hardware). > 4. While the BIOS would be difficult to call an access control device, > there has never been a question since day one that CSS *is* an access > control device. Very little backpedalling necessary. Yup, with the caveat the I'm only convinced of the _technical_ absurdity of calling a BIOS "access control." > The real killer here is the reverse engineering issue. A number of people > are suggesting that the Xing player was "reverse engineered" by direct > disassembly rather than mapping the function space in a clean-room scenario. > If this is truly the case, then it puts DeCSS into a completely different > game than Connectix, because then it can be claimed as design theft or > something similar. I'm still getting up to speed on this part of it. I'm not sure how to take this one head-on. There is always the flanking maneuver --- U.S. v. Paramount 334 U.S. 131 (1948). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 13:36:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27496 for dvd-discuss-outgoing; Tue, 7 Mar 2000 13:36:42 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA27493 for ; Tue, 7 Mar 2000 13:36:40 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA31738 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 13:49:40 -0600 Date: Tue, 7 Mar 2000 13:49:40 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] October 99 House Hearing Message-ID: <20000307134940.A31696@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just ran over a document I hadn't seen before, and buried as it was in GPO archives, I've mirrored it for easy access. It's a transcript of an October 1999 hearing before the Subcommittee on Telecommunications, Trade, and Consumer Protection of the Committee on Commerce, House of Representatives (whew!). It's interesting because it has a bunch of prepared remarks by the MPAA (Valenti), RIAA, HRRC, Rioport.com (Diamond Multimedia), Intel, etc. While it doesn't appear to have any direct bearing on the legal cases, it provides lots of good examples of how the MPAA and RIAA present their side of the argument. It's at http://www.reric.net/dvdlaw/hearing1.txt Please email me if you need directions on how to find this document on the GPO website. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 14:09:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02558 for dvd-discuss-outgoing; Tue, 7 Mar 2000 14:09:56 -0500 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02555 for ; Tue, 7 Mar 2000 14:09:55 -0500 Received: from alaptop.hotwired.com ([12.78.116.187]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000307202233.VRSR5318.mtiwmhc22.worldnet.att.net@alaptop.hotwired.com>; Tue, 7 Mar 2000 20:22:33 +0000 Message-Id: <4.3.0.20000307151920.01aceac0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Tue, 07 Mar 2000 15:20:49 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Filing a strategy? Cc: greslin@linuxpower.org In-Reply-To: <20000307134808.B10410@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Whoops, yes, haven't sent out the URL yet. I put it up on politechbot.com: http://www.politechbot.com/docs/dvd-case.20000307.html -Declan At 13:48 3/7/2000 -0500, greslin@linuxpower.org wrote: >I just read an article over on Wired by Declan, indicating that our >good friends the EFF attorneys have filed a strategy outline with >the court in Connecticut regarding the Hughes case. The article >sort of implies that it's a public filing - the contents of the >filing are described in the article - but I don't see any mention >of this on either EFF's site or OpenDVD.org. > >Is this a public filing? And if so, can we expect something to be >on the web shortly? > >http://www.wired.com/news/politics/0,1283,34779,00.html > > >Rob Warren >greslin@linuxpower.org >www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 14:39:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09137 for dvd-discuss-outgoing; Tue, 7 Mar 2000 14:39:30 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA09134 for ; Tue, 7 Mar 2000 14:39:29 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id PAA27077 for ; Tue, 7 Mar 2000 15:52:30 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA04078; Tue, 7 Mar 2000 15:52:28 -0500 (EST) Date: Tue, 7 Mar 2000 15:52:28 -0500 (EST) Message-Id: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <20000307130712.E10059@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: > 1. Legitimate reverse engineering via mapping the function space, rather > than by direct disassembly. The decision seems to indicate that had they > arrived at their final product via direct disassembly, the court decision > might well have come down against them. I think this distinction is an > extremely important one - according to the judge's findings of fact, > Connectix did not directly examine Playstation code in the process of > trying to emulate it. I'm not sure how you draw this conclusion. The opinion states that Connectix did not use the disassembled listing they obtained of the complete BIOS, but it also states that they did in fact use disassembly of portions of the BIOS, in addition to using debuggers, which generally provide disassembled listings of the code under inspection. In fact, Sony's lawyers made a claim that a full disassembly would have been *less* objectionable than the repeated partial dissasemblies done by Connectix, because it would have copied the code (under the fair use reverse-engineering exception established by the Sega case) only once, and it was therefore not "necessary" to copy it more often. The court rejected that claim, saying that the "necessity" invoked in the Sega decision was the necessity of doing reverse engineering *at all* to establish interoperability, and once it was proved necessary, it didn't matter how often the code was disassembled, or how much of it. This court, at least, does not appear to regard disassembly, either in whole or in part, as any kind of "illegitimate" reverse engineering. BTW, does anyone have a case citation in which disassmebly in whole or in part, or any other technique, *was* held to be "illegitimate"? The notion originally crept into this discussion because some folks did not understand the nature of "clean room" development in producing a reversed engineered clone of someone else's product (which can and often does involve invasive examination of the original via disassembly and debuggers). > 2. The Connectix player only plays about 100 or so games. This tends to > support point #1; had the player been able to play *all* the games, then > there would have been considerable question that Connectix had not directly > disassembled code. Limited functionality is a pretty good indicator that > the function space had been RE'd and not the implementation itself. Now > if we could show that DeCSS only scrambles *some* DVD's, then this could > be considered indirect evidence that there was no intellectual property > theft. Unfortunately I don't think that is the case. Once again, I'm not sure where you're getting this from in the decision. The Ninth Circuit opinion acknowledges that Connectix plays games worse than the original Playstation, though they don't go into specifics. However, they mention this problem in connection with Sony's claim of "tarnishment" --- that allowing Connectix to release a buggy Playstation emulator would tarnish the reputation of the original Playstation. (Again, BTW, the plaintiffs are actually arguing *against* you --- if Connectix improves their emulator, that weakens, not strengthens, this portion of Sony's case). If they refer to the functional deficiences of the Connectix software at all in their discussion of the infringement claims, I'd appreciate you quoting the language; I really must have missed that part. They certainly don't spend much space on it, so again, I'm not sure they regard it as relevant. > 3. A BIOS would probably be very difficult to label as an access control > device, on a technical level. This would be the hardware equivalent of > Microsoft calling the Windows API an access control device; yes, they could > do it, but it would be an uphill fight all the way. You could march a > line of expert witnesses five miles long into the court room to refute it. > To begin with, the primary function of a BIOS is not to prevent > unauthorized access. The Nintendo case is *much* more apropos on this point (it involved a genuine access control mechanism), which is why I really regret not having being able to cite an on-line copy of the opinion. > 4. While the BIOS would be difficult to call an access control device, > there has never been a question since day one that CSS *is* an access > control device. Very little backpedalling necessary. > > I'm of course always open to being wrong. But this is how it seems to me, > after reading the 2/10 decision. > > The real killer here is the reverse engineering issue. A number of people > are suggesting that the Xing player was "reverse engineered" by direct > disassembly rather than mapping the function space in a clean-room scenario. > If this is truly the case, then it puts DeCSS into a completely different > game than Connectix, because then it can be claimed as design theft or > something similar. I'm not sure what you're saying here. Once again, clean room engineering can and does involve the use of disassemblers, debuggers, and any other invasive technique you can imagine --- it simply requires that these (along with any copy of the original product in any form) be kept out of the "clean room" where the clone software is written. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 15:03:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16223 for dvd-discuss-outgoing; Tue, 7 Mar 2000 15:03:54 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA16220 for ; Tue, 7 Mar 2000 15:03:50 -0500 Received: (qmail 2353 invoked by uid 60001); 7 Mar 2000 21:16:19 -0000 Message-ID: <20000307211619.2352.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Tue, 07 Mar 2000 13:16:19 PST Date: Tue, 7 Mar 2000 13:16:19 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > This court, at least, does not appear to regard disassembly, either > in whole or in part, as any kind of "illegitimate" reverse engineering. Neither did Congress when they made the DMCA. They explicitly recognized that disassembly might be needed to provide interoperability. The following quote is from HR Rept. 105-551. See http://eon.law.harvard.edu/archive/dvd-discuss/msg00897.html " Section 102(f)(2) recognizes that, to accomplish the acts permitted under Section 102(f)(1), a person may need to make and use certain tools. The Committee believes that such tools are generally available and used by programmers today in developing computer programs (e.g., compilers, trace analyzers, and disassemblers). Such tools are not prohibited by this Section." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 15:36:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24956 for dvd-discuss-outgoing; Tue, 7 Mar 2000 15:36:15 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA24953 for ; Tue, 7 Mar 2000 15:36:13 -0500 Received: (qmail 10687 invoked by uid 502); 7 Mar 2000 21:51:06 -0000 Date: Tue, 7 Mar 2000 16:51:05 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000307165105.D10410@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> <20000307125105.A2393@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000307125105.A2393@localhost>; from Paul Fenimore on Tue, Mar 07, 2000 at 12:51:06PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 12:51:06PM -0700, Paul Fenimore wrote: > > Sorry, I still haven't read Sony v. Connectix. Are you saying that in > order to map the function-space they simply made calls to the BIOS entry > points with varying number of arguments, and waited for the thing to crash? > > If so, getting the functionality of the entry point must be even more fun. >From what I understand from the judge's decision, one of the Connectix techs downloaded a copy of the BIOS from the Internet somewhere and started running it against their own hardware while watching the interaction. They took their observations and built a function spec from it, and then built the emulator from the spec. They obviously realized that Sony would sue them over it; they followed proper clean room RE procedures to the letter. Judge Canby outlined a really excellent summary of RE - it's listed in the 3/6 FAQ as 3.4.3. From what I read (and remember), a Connectix tech had disassembled the Playstation code at one point, but the court found that this disassembly had not been a part of the RE process except in the very initial stages, at which time it had been abandoned. Connectix was also on record has having contacted Sony for technical assistance, which Sony refused. I've no doubt that these points certainly weighed in the defendent's favor. > I agree that as a technical matter, calling a whole BIOS "access control" > is unreasonable, but 1201 is plenty unreasonable already. I'm not sure > Sony couldn't do what Wendy is suggesting. Of course they could. But it would be much easier to defend against. It's not just an issue of what laws say; it's also an issue of a strong case versus a weak one, i.e. one that is easily defended against. If Sony tried to do the "BIOS = access control", the defendents could have expert witnesses in a line around the corner and down the hall to testify that it isn't. It's a little tougher to do that with CSS, since CSS was obviously put in place for no other reason than to restrict certain usages of the content. There's no way we'd win by trying to claim that CSS isn't access control. > Yup, with the caveat the I'm only convinced of the _technical_ absurdity > of calling a BIOS "access control." Agreed. "Bring in the expert witnesses, Bailiff.. get some more chairs.. possibly some sandwiches.. can we quiet it down in here?.. get off my desk.. THEY'RE STILL COMING IN???" That's what the geeks are for in court - to point out the technical absurdity. Sony knows better. You don't get to the size Sony is by being that stupid in court. > > The real killer here is the reverse engineering issue. A number of people > > are suggesting that the Xing player was "reverse engineered" by direct > > disassembly rather than mapping the function space in a clean-room scenario. > > If this is truly the case, then it puts DeCSS into a completely different > > game than Connectix, because then it can be claimed as design theft or > > something similar. > > I'm still getting up to speed on this part of it. I'm not sure how to > take this one head-on. There is always the flanking maneuver --- > U.S. v. Paramount 334 U.S. 131 (1948). Going back and rereading SvC, it makes a number of RE statements regarding straight disassembly and the Sega case. The encouraging thing is that it seems to say that disassembly is okay for the purposes of studying the functionality versus stripping it for secrets. I'm not sure of the difference, myself. The address for the SvC case is 3/6 FAQ 2.9.3. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 15:54:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA30770 for dvd-discuss-outgoing; Tue, 7 Mar 2000 15:54:11 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA30671 for ; Tue, 7 Mar 2000 15:54:03 -0500 Received: (qmail 7238 invoked by uid 60001); 7 Mar 2000 22:06:58 -0000 Message-ID: <20000307220658.7237.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Tue, 07 Mar 2000 14:06:58 PST Date: Tue, 7 Mar 2000 14:06:58 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Filing a strategy? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Declan McCullagh wrote: > http://www.politechbot.com/docs/dvd-case.20000307.html Here's a summary of this document. There are some interesting ideas in it. Jeraimee Hughes, the Connecticut defendant is represented by Avery S. Chapman and Robert P. Dolian of CHAPMAN & ASSOCIATES, LLC They raise 9 "Proposed Motions": 1-3. Challenge the MPAA's standing without the DVD CCA as a party 4. Claims DeCSS isn't a "access control device" since it protects some non-copyrighted material 5. Plaintiffs claims should be under 1201(b) not (a)(2) 6. The Reverse Engineering exception 1201(f) applies 7. The posting of DeCSS by Hughes was protected political speech. 8. Prior Restraint is Unconstitutional 9. Plaintiffs are misusing their copyright to extend power over exhibition software. A more detailed paraphrase is here. These rough quotes are abridged. 1. Plaintiffs are not the real party in interest. The eight named plaintiffs in the within action are not the owners of the CSS technology they claim has been circumvented, nor are they the only members of the entity owning and licensing the CSS technology. It is the DVD CCA that owns the license rights to CSS technology, and the motion picture industry therefore cannot seek to prosecute the rights or another. 2. Plaintiffs have failed to join a necessary party. Failure to include DVD CCA as a party in the within action would subject Mr. Hughes to the substantial risk of incurring double or multiple obligations. If the eight named members of the motion picture industry are allowed to prosecute this action, there is no protection for Mr. Hughes, as well as any other persons similarly situated, that would prevent Mr. Hughes from later being sued for alleged DMCA violations by the DVD CCA. 3. Claims by plaintiffs without the DVD CCA could impair or impede DVD CCA’s ability to protect their interests in the CSS technology. Clearly, any decision as to the legitimacy of distributing DeCSS has direct and immediate consequences to DVD CCA’s interests in the CSS technology. Plaintiffs do not adequately represent the interests of DVD CCA because plaintiffs only represent but one portion of the industries represented in the DVD CAA. The interests of the computer and consumer electronics industries, which also comprise the DVD CCA, are unrepresented and subsequently the action should be dismissed for failure to join a necessary party. 4. DeCSS is not an "access control device" to copyrighted material as defined by the DMCA. The material "protected" by CSS also includes non-copyrighted material, such as regional playback control codes ("RPC"), commercial advertising and other non-expressive aspects of DVD playback, including code that prevents users from skipping or fast forwarding through the former. DVD licenses are required, by the terms of their CSS license, to enable these functions. By protecting such non-expressive functional content behind the CSS firewall, the plaintiffs propose too broad a definition to access control device than Congress intended. To adopt plaintiff’s definition of CSS as an access control device is to allow copyright holders to misuse their copyright to cover or cloak information or data that otherwise would not be covered by their copyright. DeCSS is fair use of CSS and the copyright material it protects -- to obtain interoperability for Linux users; it certainly does not constitute copyright infringement. 5. Plaintiffs have invoked the wrong section of the DMCA. Plaintiffs’ claims are based on a copyright control / infringement theory, which is only covered by 1201(b)(2). 6. DeCSS falls within the "reverse engineering" exception of the DMCA. DeCSS was developed by a user of the "Linux" computer operating system. The CSS technology of the DVD discs would not operate in the Linux environment. This posed a classic interoperability problem -- the manufactures and distributors, in international as well as United States commerce, of a consumer product had not provided for the operation of that product in any operating system but "Windows." The Linux community eventually sought to remedy that problem, and DeCSS was created. Because "[t]he purpose of [1201(f)] is to foster competition and innovation in the computer and software industry" S.Rep.No. 105-190 at 28 (1998), and the DMCA expressly provides for an exception for reverse engineering to solve interoperabilty problems, plaintiffs fail to state a cause of action. 7. The posting of DeCSS by defendant was protected political speech. The ct2600 website, upon which plaintiffs allege Mr. Hughes posted DeCSS, is a forum for constructive commentary upon Internet issues of interest to those who visit the website. Specifically, if one assumes, arguendo, that DeCSS was posted on ct2600, it was posted within the context of discussion and debate concerning the California and New York cases. 8. Plaintiffs’ requested injunction, restraining speech prior to publication, is presumptively unconstitutional. Plaintiffs cannot point to any damage caused by defendant’s protected speech. The requested relief therefore has no legitimate purpose, and would serve only to have a chilling effect on free speech in cyberspace. Plaintiffs’ requested relief would chill the ability of Internet users to actively pursue, discuss and distribute interoperabilty solutions. This requested relief is not what the framers of the DMCA intended. Furthermore, individuals who do not have the resources to rule out any potential complaints of infringement or misappropriation will be forced to refrain from posting, linking or discussing interoperability problems and solutions on the Internet for fear of lawsuits.no legitimate purpose, and would serve only to have a chilling effect on free speech in cyberspace. 9. Plaintiffs are misusing their copyright. The DMCA cannot be used to extend the copyright of copyright holder beyond its scope to affect marketing power in another area. Plaintiffs are attempting to extend power over exhibition software, which is a different area than that protected by their copyrights. Further, the plaintiffs are attempting to dictate the business model of Linux, owned by its community of users, to prevent the creation of alternative platforms for operation of DVD discs. [Discussion of US v Paramount & legislative history decrying "pay-per-access" followed] __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 16:03:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01606 for dvd-discuss-outgoing; Tue, 7 Mar 2000 16:03:05 -0500 Received: from dial244.roadrunner.com (dial244.cybermesa.com [209.12.75.244]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA01603 for ; Tue, 7 Mar 2000 16:03:00 -0500 Received: (from paul@localhost) by dial244.roadrunner.com (8.8.7/8.8.7) id PAA03272 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 15:19:05 -0700 Date: Tue, 7 Mar 2000 15:19:04 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! Message-ID: <20000307151903.A3004@localhost> References: <20000307032112.19996.qmail@web506.mail.yahoo.com> <000101bf8800$bc89fac0$ce7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000101bf8800$bc89fac0$ce7945ce@bugbug.WinNATDomain>; from sparky@suba.com on Tue, Mar 07, 2000 at 12:45:33AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu 1. Access is a prerequisite to performance or reading. 2. Access is planted squarely between recording and performance or between writing and reading. 3. The name "copyright" and the exclusive rights outlines in 17 USC 106 make for a confusing pair. 106 regulates two physically distinct types of activities: (i) Duplication of copyright works into a tangible medium. This is copying. (ii) Public performance of copyrighted works. No duplication into a tangible medium involved. This isn't copying. 4. Fair use in 107 lists criteria for determining if duplication into a tangible medium is exempt from 106. 5. Fair use in 107 says nothing about performance or private reading of published, copyrighted works, although it should. 6. If Bryan' reading of Harper & Row v. Nation Enterprises is correct, some acts of duplication into a tangible medium are a _right_ under the copyright clause. 7. Regardless of the status of the right to make some reproductions, the right to read, and presumabley to private performance, are First and Nineth Amendments _rights_ with a scope much larger than copyright. Griswold v. Connecticut 381 U.S. 479 (1965). Martin v. Struthers 319 U.S. 141 (1943). Stanley v. Georgia 394 U.S. 557 (1969). If you argue that access is purely a matter of fair use, you lose the wider implications of the right to read and the not-specifically stated "right" to private performance as issues that go way beyond the copyright clause. On Tue, Mar 07, 2000 at 12:45:33AM -0600, sparky wrote: [ ... ] > 8) We could push for the court to understand ACCESS as a subcategory of USE > of works, which would allow an understanding of access as meriting factored > evaluation on a case-by-case basis along fair use lines. Access is a prerequisite to reading and performance (private or public). Any "balancing" of private reading or performance of copyright material after first sale _might_ win this case, but it would lose the war. You'd have no "absolute" right to read left. > Thus: show access is use, and eventually, maybe, we can turn the trafficking > case into a freedom to distribute information case. STANLEY v. GEORGIA, 394 U.S. 557 (1969) (b) The Constitution protects the right to receive information and ^^^^^^^^^^^^^^^^ ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts. Pp. 564-566. Stanley is an obscenity case. - (a)(2) impact the right to receive information without regard to actual "injury" under (a)(1) or 106. - (a)(2) is protecting against an injury contingent on a de novo offense: (a)(1) circumvention. The offense of "circumvention" is itself deeply in conflict with Griswold and Martin decisions on the right to read. > Something Rob said made me think: that we should use the vagueness of the > law? Can't remember exactly. But I think the approach in the case could be: > Here we have with access what is essentially a brand new category of use of > works. It is not new in itself, but tech has brought a never-before > considered aspect of it to the fore. New yes, but I think Federal "access control"-type laws go back to the 1984 Cable Communications Policy Act. 47 USC 553 says, * (a) Unauthorized interception or receipt or assistance in intercepting or receiving service; ''assist in intercepting or receiving'' defined + (1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. + (2) For the purpose of this section, the term ''assist in intercepting or receiving'' shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1). > -Congress was not willing to be specific regarding instances of access, and > empowered the LOC to review types of works for exemption from 1201. This > implies that Congress recognizes that there are potentially many sorts of > access, and that some may be permitted while others may not be. Two main points: - The librarian can only exempt categories under (a)(1), not (a)(2). - I'd say that getting access is one issue, and what you do with the unscrambled data-stream after gaining access is a different issue. The law already sort of does this by making "circumvention" and "infringement" distinct offenses. > -the "authority" of the copyright holder is not defined; we may understand, > therefore, that it refers to the authority of the copyright holder as > understood in standing copyright law. To impose a new sort of "authority" > without describing/codifying it explicitly is surely not the intended > interpretation of this law. I agree that the idiocy with authority in the law is a huge sticking point for the plaintiffs. I think to some extent this is exactly what Jack and the MPAA wanted when the lobbied for the law, although in hindsight it is fair to say that they didn't consider all the consequences this would have in court. I suspect that they implicitly think of the themselves as "the" copyright holder refered to in 1201. There isn't a "the" copyright holder. Even when you restrict to access controlled works, it must still be in the thousands. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 16:04:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01954 for dvd-discuss-outgoing; Tue, 7 Mar 2000 16:04:26 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA01949 for ; Tue, 7 Mar 2000 16:04:24 -0500 Received: (qmail 10763 invoked by uid 502); 7 Mar 2000 22:19:20 -0000 Date: Tue, 7 Mar 2000 17:19:20 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000307171920.E10410@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <200003072052.PAA04078@soggy-fibers.ai.mit.edu>; from Robert S. Thau on Tue, Mar 07, 2000 at 03:52:28PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 03:52:28PM -0500, Robert S. Thau wrote: > greslin@linuxpower.org writes: > > > > 1. Legitimate reverse engineering via mapping the function space, rather > > than by direct disassembly. The decision seems to indicate that had they > > arrived at their final product via direct disassembly, the court decision > > might well have come down against them. I think this distinction is an > > extremely important one - according to the judge's findings of fact, > > Connectix did not directly examine Playstation code in the process of > > trying to emulate it. > > I'm not sure how you draw this conclusion. The opinion states that > Connectix did not use the disassembled listing they obtained of the > complete BIOS, but it also states that they did in fact use disassembly > of portions of the BIOS, in addition to using debuggers, which > generally provide disassembled listings of the code under inspection. Sorry, gang; I had been quoting from memory. I went back and reread SvC more carefully and yes, I made a number of factual errors. My apologies. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 16:10:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04599 for dvd-discuss-outgoing; Tue, 7 Mar 2000 16:10:01 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA04560 for ; Tue, 7 Mar 2000 16:10:00 -0500 Received: (qmail 10775 invoked by uid 502); 7 Mar 2000 22:24:56 -0000 Date: Tue, 7 Mar 2000 17:24:56 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000307172456.F10410@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> <20000307125105.A2393@localhost> <20000307165105.D10410@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000307165105.D10410@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 07, 2000 at 04:51:05PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 04:51:05PM -0500, greslin@linuxpower.org wrote: > On Tue, Mar 07, 2000 at 12:51:06PM -0700, Paul Fenimore wrote: > > > > Sorry, I still haven't read Sony v. Connectix. Are you saying that in > > order to map the function-space they simply made calls to the BIOS entry > > points with varying number of arguments, and waited for the thing to crash? > > > > If so, getting the functionality of the entry point must be even more fun. > > >From what I understand from the judge's decision, one of the Connectix techs > downloaded a copy of the BIOS from the Internet somewhere and started running > it against their own hardware while watching the interaction. They took > their observations and built a function spec from it, and then built the > emulator from the spec. They obviously realized that Sony would sue them > over it; they followed proper clean room RE procedures to the letter. > > Judge Canby outlined a really excellent summary of RE - it's listed in the > 3/6 FAQ as 3.4.3. From what I read (and remember), a Connectix tech had > disassembled the Playstation code at one point, but the court found that > this disassembly had not been a part of the RE process except in the very > initial stages, at which time it had been abandoned. Connectix was also > on record has having contacted Sony for technical assistance, which Sony > refused. > > I've no doubt that these points certainly weighed in the defendent's favor. I went back and reread SvC. Please disregard most (but not all) of this post. I really should start waiting until the drugs wear off before I post. :) Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 16:17:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06352 for dvd-discuss-outgoing; Tue, 7 Mar 2000 16:17:09 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA06349 for ; Tue, 7 Mar 2000 16:17:08 -0500 Received: (qmail 10793 invoked by uid 502); 7 Mar 2000 22:32:05 -0000 Date: Tue, 7 Mar 2000 17:32:05 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Message-ID: <20000307173205.G10410@linuxpower.org> References: <20000307220658.7237.qmail@web502.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000307220658.7237.qmail@web502.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 07, 2000 at 02:06:58PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 02:06:58PM -0800, Bryan Taylor wrote: > > 4. Claims DeCSS isn't a "access control device" since it protects some > non-copyrighted material Uh.. I had to go back and read it for myself. Yup, it says this. Of course DeCSS isn't an access control device; it doesn't protect anything. CSS is the access control device. I believe what they mean to say here is that DeCSS isn't an access control *circumvention* device. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 16:54:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16194 for dvd-discuss-outgoing; Tue, 7 Mar 2000 16:54:15 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA16171 for ; Tue, 7 Mar 2000 16:54:14 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id SAA14013; Tue, 7 Mar 2000 18:07:16 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA04846; Tue, 7 Mar 2000 18:07:14 -0500 (EST) Date: Tue, 7 Mar 2000 18:07:14 -0500 (EST) Message-Id: <200003072307.SAA04846@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <20000307165105.D10410@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> <20000307125105.A2393@localhost> <20000307165105.D10410@linuxpower.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > From what I understand from the judge's decision, one of the > Connectix techs downloaded a copy of the BIOS from the Internet > somewhere and started running it against their own hardware while > watching the interaction. They took their observations and built a > function spec from it, and then built the emulator from the spec. > They obviously realized that Sony would sue them over it; they > followed proper clean room RE procedures to the letter. I'm glad to see you now recognize that disassembly *can* be a part of cleanroom development. > Judge Canby outlined a really excellent summary of RE - it's listed in the > 3/6 FAQ as 3.4.3. From what I read (and remember), a Connectix tech had > disassembled the Playstation code at one point, but the court found that > this disassembly had not been a part of the RE process except in the very > initial stages, at which time it had been abandoned. Connectix was also > on record has having contacted Sony for technical assistance, which Sony > refused. > > I've no doubt that these points certainly weighed in the defendent's favor. Huh? In the earlier Sega decision, the defendant (Accolade) *had* done a full disassembly (in fact, several), and the very same court found in their favor. Which is why, in Sony v. Connectix, Sony was forced to explicitly acknowledge that a full disassembly was a perfectly fine reverse engineering technique, and argue that repeated *partial* disassembly was somehow tainted: Sony contends that Connectix's reverse engineering of the Sony BIOS should be considered unnecessary [i.e., to have involved unnecessary copyright infringement] on the rationale that Connectix's decision to observe the Sony BIOS in an emulated environment required Connectix to make more intermediate copies of the Sony BIOS than if Connectix had performed a complete disassembly of the program. Under this logic, at least some of the intermediate copies were not neces- sary within the meaning of Sega. This is exactly the opposite of what you're arguing --- not that it matters much, since the court has now rejected the argument either way. As to asking Sony for technical assistance, I can see that in the court's summary of the facts of the case, but I don't see where in the opinion the court applies that fact to any point of law, so it sure doesn't look to me that the court considered that fact particularly relevant to the outcome of the case. If you disagree, could you kindly say why? > > Yup, with the caveat the I'm only convinced of the _technical_ absurdity > > of calling a BIOS "access control." > > Agreed. "Bring in the expert witnesses, Bailiff.. get some more chairs.. > possibly some sandwiches.. can we quiet it down in here?.. get off my desk.. > THEY'RE STILL COMING IN???" > > That's what the geeks are for in court - to point out the technical > absurdity. Sony knows better. You don't get to the size Sony is by being > that stupid in court. This would be great if we were arguing Sony v. Connectix, and Sony were stupid enough to make this argument, but we're not and they aren't either. CSS plainly *is* an access control mechanism, so if we're going to find any succor on this point from precedent, we need to be looking at cases where access control mechanisms were at issue. Once again, I'll mention Nintendo v. Atari, but it turns out on further examination that the Sega case involved an access control mechanism as well --- search for "TMSS" in the opinion if you want to get to that part. It turns out that Sega is another case where the court held that access control keys are "functional" matter outside the scope of copyright (though, before addressing that point in the Sega opinion, they spend several pages fanning away smoke that Sega's lawyers were blowing about, of all things, trademarks). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 18:37:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19748 for dvd-discuss-outgoing; Tue, 7 Mar 2000 18:37:45 -0500 Received: from dial146.roadrunner.com (dial146.cybermesa.com [209.12.75.146]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA19689 for ; Tue, 7 Mar 2000 18:37:42 -0500 Received: (from paul@localhost) by dial146.roadrunner.com (8.8.7/8.8.7) id RAA05601 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 17:53:55 -0700 Date: Tue, 7 Mar 2000 17:53:53 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Message-ID: <20000307175353.A5007@localhost> References: <38c38951.26301622@mail.tiac.net> <38c95ead.56277258@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38c95ead.56277258@mail.tiac.net>; from rongus@tiac.net on Fri, Mar 03, 2000 at 06:50:39AM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu About the Cabinet of Dr. Caligari: As Ron Gustavson told me earlier, the liner notes say that the picture frames have been colorized. Ron, do you know if artifacts have also been removed, or not? I'm asking because, 17 USC 103 says, * (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. * (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. If I understand (b) properly, and the black and white part of the signal hasn't been modified, perhaps we can argue that one should be able to access the movie, strip the color information, and have a public domain movie back. Paul Fenimore On Fri, Mar 03, 2000 at 06:50:39AM +0000, Ron Gustavson wrote: > > >I finally got a DVD of a public domain movie-- > >Cabinet of Dr. Caligari (1919)--which seems to be encrypted. > >(At least it doesn't produce DeCSS' "Error getting disk key. > >Title might not be encrypted.") > > > re: Dr. Caligari DVD-- > > The liner notes claim this DVD is made from a 35mm copy of a > 1923 German re-issue. Of course,1923 is the cut-off date for the > Copyright Extension act. (Or is it now 24 or 25?) Anyway, there's > no indication as to the date of the copy. > > So _that_ issue is definitely muddy. > > > __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 18:51:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23817 for dvd-discuss-outgoing; Tue, 7 Mar 2000 18:51:58 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA23814 for ; Tue, 7 Mar 2000 18:51:56 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id RAA12761 for dvd-discuss@eon.law.harvard.edu; Tue, 7 Mar 2000 17:16:12 -0800 Date: Tue, 7 Mar 2000 17:16:12 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Message-ID: <20000307171611.O1171@duskglow.com> References: <38c38951.26301622@mail.tiac.net> <38c95ead.56277258@mail.tiac.net> <20000307175353.A5007@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000307175353.A5007@localhost>; from fenimore@roadrunner.com on Tue, Mar 07, 2000 at 05:53:53PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Video (in an analog form) consists of four different types of information: luminance (Y), R, G, and B. You're proposing to strip everything but the Y out. Problem is that in colorizing the films the luminance component may have changed because of the colors, so I suppose they could just say that's a new work of art, because the information has been modified. I doubt that'd hold much water. For example, when they were making those old films, they'd paint the actor's faces with green paint so it'd look better in black and white. Now it may be that digitally it'd just be R, G, and B, so also it's possible that the luminance component may have been merged into the color and is no longer distinguishable as a separate work of art. I'd think this would be VERY weak. --Russell On Tue, Mar 07, 2000 at 05:53:53PM -0700, Paul Fenimore wrote: > About the Cabinet of Dr. Caligari: > > As Ron Gustavson told me earlier, the liner notes say that the picture > frames have been colorized. Ron, do you know if artifacts have also been > removed, or not? I'm asking because, 17 USC 103 says, > > * (a) The subject matter of copyright as specified by section 102 > includes compilations and derivative works, but protection for a > work employing preexisting material in which copyright subsists > does not extend to any part of the work in which such material has > been used unlawfully. > > * (b) The copyright in a compilation or derivative work extends only > to the material contributed by the author of such work, as > distinguished from the preexisting material employed in the work, > and does not imply any exclusive right in the preexisting > material. The copyright in such work is independent of, and does > not affect or enlarge the scope, duration, ownership, or > subsistence of, any copyright protection in the preexisting > material. > > If I understand (b) properly, and the black and white part of the signal > hasn't been modified, perhaps we can argue that one should be able to > access the movie, strip the color information, and have a public > domain movie back. > > > Paul Fenimore > > On Fri, Mar 03, 2000 at 06:50:39AM +0000, Ron Gustavson wrote: > > > > >I finally got a DVD of a public domain movie-- > > >Cabinet of Dr. Caligari (1919)--which seems to be encrypted. > > >(At least it doesn't produce DeCSS' "Error getting disk key. > > >Title might not be encrypted.") > > > > > re: Dr. Caligari DVD-- > > > > The liner notes claim this DVD is made from a 35mm copy of a > > 1923 German re-issue. Of course,1923 is the cut-off date for the > > Copyright Extension act. (Or is it now 24 or 25?) Anyway, there's > > no indication as to the date of the copy. > > > > So _that_ issue is definitely muddy. > > > > > > __________no-∞-do__________ -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 20:26:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22144 for dvd-discuss-outgoing; Tue, 7 Mar 2000 20:26:13 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22141 for ; Tue, 7 Mar 2000 20:26:11 -0500 Received: from bugbug (max01-19.suba.com [206.69.121.211]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA11688 for ; Tue, 7 Mar 2000 20:39:08 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS (*evaluated*) as USE - long again. I'm bad. Date: Tue, 7 Mar 2000 20:38:13 -0600 Message-ID: <000501bf88a7$5997cda0$f67945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000307151903.A3004@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu By the way, Paul, I wasn't hooked up to majordomo when you and Rob were having it out over right to read (I did read a few at the openlaw site). If you or anyone else could send the posts for that string, I can put them up on my site. More responses below. > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore > Sent: Tuesday, March 07, 2000 4:19 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! > > > 1. Access is a prerequisite to performance or reading. > > 2. Access is planted squarely between recording and performance or > between writing and reading. > > 3. The name "copyright" and the exclusive rights outlines in 17 USC 106 > make for a confusing pair. 106 regulates two physically distinct types > of activities: > (i) Duplication of copyright works into a tangible medium. This is > copying. > (ii) Public performance of copyrighted works. No duplication into > a tangible medium involved. This isn't copying. > > 4. Fair use in 107 lists criteria for determining if duplication into > a tangible medium is exempt from 106. > > 5. Fair use in 107 says nothing about performance or private reading > of published, copyrighted works, although it should. > > 6. If Bryan' reading of Harper & Row v. Nation Enterprises is correct, > some acts of duplication into a tangible medium are a _right_ under > the copyright clause. > > 7. Regardless of the status of the right to make some reproductions, > the right to read, and presumabley to private performance, are First > and Nineth Amendments _rights_ with a scope much larger than copyright. > Griswold v. Connecticut 381 U.S. 479 (1965). > Martin v. Struthers 319 U.S. 141 (1943). > Stanley v. Georgia 394 U.S. 557 (1969). > > If you argue that access is purely a matter of fair use, you lose the > wider implications of the right to read and the not-specifically stated > "right" to private performance as issues that go way beyond the copyright > clause. Less important to me - although I guess I was not clear, par for the course really - was the possibility of arguing access as use, which I suspect the judge would find academic even if it would be correct, and more important was the possibility of pushing for *instances* of access to be evaluated a la use, *contrary* to the blunt and vague language of 1201. It is an argument based really on the presumption that the MPAA is going to push for a completely unglossed reading of the law. Guessing at an MPAA strategy: The MPAA is going to show that DeCSS does what they say it does with a court demonstration. Then they will point to the law, quote "with the authority", claim that this means "with the permission", prove that there was no permission, and rest it on that. The only way to work it is to, as has been said, "get out of the sandbox". These thoughts were meant to address this fundamentally, and I am not hung up on the access=use thing, esp if it is backwards. IMHO I don't think that what I'm saying is all that alien to the right to read position. [MY OWN ACCESS AS PREREQUISITE?] However, I will be playing some devil here. > > On Tue, Mar 07, 2000 at 12:45:33AM -0600, sparky wrote: > > [ ... ] > > > 8) We could push for the court to understand ACCESS as a > subcategory of USE > > of works, which would allow an understanding of access as > meriting factored > > evaluation on a case-by-case basis along fair use lines. > > Access is a prerequisite to reading and performance (private or public). > Any "balancing" of private reading or performance of copyright material > after first sale _might_ win this case, but it would lose the war. You'd > have no "absolute" right to read left. One of the reasons that I went for the access thing is that with the advent of digital storage of works, it seems that access has been brought to the forefront as a legal question (sorry for this slight academese). Of course it always existed, but it has heretofore been naturally restricted by the very media in which works were fixed and the methods of production of those media. When you purchased a book, you had access to read it, but access to copy it or otherwise manipulate the substance of the book was naturally restricted. Copy machines changed that somewhat. Digital storage changes it completely: now access to a work means access to the very bits that make it up. Access has never been a problem, not because it was not a problem, but because the problem hid behind the things we used. Further thought made me feel that in fact some acts of access are ok and some aren't. Are there situations that exemplify this? There are. Streaming media for one, which you point out, has been covered under the law. Loans of electronic books would be another. These are situations where access of a specific nature is granted, not just any access. It seems very unlikely that, if one broke an anti-access measure on these items, a right to read defense would be possible. This raises a question in my mind as to the "absolute" right to read. It would be theft, period. More theory: the examples in the previous paragraph are examples of *passive* access. (I think a post by a lawyer maybe? used the strange and comical phrase "active act of access" and suddenly today I realized what he was talking about). Passive access really falls into service. The libraries and streaming media companies are providing a service. To break protections they have set up is an illegal act of active access, the accessor actively going in and fiddling rather than just sitting back and letting art wash over him/her. In my opinion anti-access measures should not be protected where *active* access has been granted by sale. Maybe we could argue thusly: DeCSS is not a circumvention device which circumvents the anti-access measures on streaming media or loaned electronic books etc. If it were, it would *clearly* be intended exclusively for piracy. In fact, it is a device which circumvents, but circumvents anti-access measures on store-purchased media. There is no reasonable way the court can believe that every access made in the privacy of one's own home, or (maybe better to say) on one's privately owned media, is going to be infringing; therefore there is no reasonable way for the court to believe that the device has only illegal uses. Therefore no trafficking? Case closed? This idea is REALLY making my toes tingle.. It assumes using fair use as a defense. Fair use gets its say. It does not bluntly attack 1201, but finesses it based on a distinction in the concept of access, and thus allows 1201 to stand in the sense that we consider right and fair, and bringing it into context of other laws. I have a hunch about this idea. This could be a good one. Crossin the fingers! > > > Thus: show access is use, and eventually, maybe, we can turn > the trafficking > > case into a freedom to distribute information case. > > STANLEY v. GEORGIA, 394 U.S. 557 (1969) > > (b) The Constitution protects the right to receive information and > ^^^^^^^^^^^^^^^^ > ideas, regardless of their social worth, and to be generally free > from governmental intrusions into one's privacy and control of > one's thoughts. Pp. 564-566. > > Stanley is an obscenity case. > > - (a)(2) impact the right to receive information without regard to actual > "injury" under (a)(1) or 106. > - (a)(2) is protecting against an injury contingent on a de novo offense: > (a)(1) circumvention. The offense of "circumvention" is itself deeply in > conflict with Griswold and Martin decisions on the right to read. Unless you are going to argue that it is the right of websurfers to read DeCSS on the websites in question, and that to condemn the NY defendants is to restrict those readers' rights, how are you going to get from right to read to the argument that trafficking is ok? The defendants were not receiving any information. You can say right to read, but if the response to the MPAA's assertion that they did not permit the circumvention of CSS is that there is a right to read, won't the judge simply point to the lack of infringement and call it immaterial? In fact I think that here our ideas neatly dovetail. Our positions both rely on the language of 1201 being too blunt and vague to co-exist with, not just one legal history, but apparently at least TWO, right to read and copyright law itself; and it is to the public's benefit that the history, which reflects many actual decisions weighed carefully, be given the consideration over the language of 1201, which is a new law and does not even equal ONE carefully weighed decision. (And shame on anyone who thinks that Congress decided. Everyone knows that Congress never decides anything. :) ) > > > Something Rob said made me think: that we should use the > vagueness of the > > law? Can't remember exactly. But I think the approach in the > case could be: > > Here we have with access what is essentially a brand new > category of use of > > works. It is not new in itself, but tech has brought a never-before > > considered aspect of it to the fore. > > New yes, but I think Federal "access control"-type laws go back to > the 1984 Cable Communications Policy Act. 47 USC 553 says, > > * (a) Unauthorized interception or receipt or assistance in > intercepting or receiving service; ''assist in intercepting or > receiving'' defined > + (1) No person shall intercept or receive or assist in > intercepting or receiving any communications service offered > over a cable system, unless specifically authorized to do so > by a cable operator or as may otherwise be specifically > authorized by law. > + (2) For the purpose of this section, the term ''assist in > intercepting or receiving'' shall include the manufacture or > distribution of equipment intended by the manufacturer or > distributor (as the case may be) for unauthorized reception > of any communications service offered over a cable system in > violation of subparagraph (1). > Perhaps we could use such laws as yet another example where 1201 tramples over carefully built legislative history? I really think this is an argument that needs to be made. From where I'm standing at the moment, there is just no business like the "argument that 1201's language is alienated from previously carefully built legislative history from all corners of the law" business. Note too, though, that IMO this argument should not start from the fundamental point that "there is a right to read, therfore 1201 is bad" or "authority is this, therefore 1201 is bad" but that 1201 does NOT flesh out much of its context - "tech" is vague, "authority" is not spelled out, "access" as a situational act does not even exist in 1201 - that is, the court should be made aware that this lack of flesh calls for the allowance of room for a situational evaluation of the act of access and the device used to circumvent the anti-access measure used in the act of access. The court should be convinced that this vagueness is *purposeful*. From there we can take the argument anywhere we want: we can take it to right to read, to freedom of speech, to freedom to distribute information, there's a whole HOST of directions we could take it. *But we will be the ones doing the taking and not the MPAA.* > > > -Congress was not willing to be specific regarding instances of > access, and > > empowered the LOC to review types of works for exemption from 1201. This > > implies that Congress recognizes that there are potentially > many sorts of > > access, and that some may be permitted while others may not be. > > Two main points: > > - The librarian can only exempt categories under (a)(1), not (a)(2). True, and I conceed that it is a weak argument. But WHAT MORON DECIDED THAT TRAFFICKING IN ANTI-ACCESS CIRCUMVENTION TECH SHOULD BE ILLEGAL BEFORE THE ACT OF CIRCUMVENTION IS ILLEGAL? Does that just not strike you as completely fscked? (Now watch someone actually name the alleged moron, and it's like the president or something.) Where I was trying to go with it was simply to "enhance the suggestion" that there IS accepted room for interpretation of acts of access which the law does not take into account within its language. > > - I'd say that getting access is one issue, and what you do with the > unscrambled data-stream after gaining access is a different issue. > The law already sort of does this by making "circumvention" and > "infringement" distinct offenses. > > > -the "authority" of the copyright holder is not defined; we may > understand, > > therefore, that it refers to the authority of the copyright holder as > > understood in standing copyright law. To impose a new sort of > "authority" > > without describing/codifying it explicitly is surely not the intended > > interpretation of this law. > > I agree that the idiocy with authority in the law is a huge sticking point > for the plaintiffs. I think to some extent this is exactly what Jack and > the MPAA wanted when the lobbied for the law, although in hindsight it > is fair to say that they didn't consider all the consequences this would > have in court. I suspect that they implicitly think of the themselves as > "the" copyright holder refered to in 1201. There isn't a "the" copyright > holder. Even when you restrict to access controlled works, it must still > be in the thousands. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 21:14:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03575 for dvd-discuss-outgoing; Tue, 7 Mar 2000 21:14:20 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA03572 for ; Tue, 7 Mar 2000 21:14:19 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA01168 for ; Tue, 7 Mar 2000 22:27:21 -0500 (EST) Message-Id: <4.2.2.20000307222138.00b689c0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 07 Mar 2000 22:27:19 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Filing a strategy? In-Reply-To: <20000307134808.B10410@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From a discussion with someone involved in the Connecticut case, I note that the letter is only a partial strategy for a motion to dismiss. It isn't a strategy for summary judgment, let alone the entire case. Some arguments that don't show up here will be used at later stages of the proceeding, at summary judgment or trial. Comments that add to (or poke holes in) any of the points the letter raises will of course be welcomed. --Wendy The letter: wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 21:37:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10468 for dvd-discuss-outgoing; Tue, 7 Mar 2000 21:37:11 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10465 for ; Tue, 7 Mar 2000 21:37:09 -0500 Received: from [38.32.10.210] (helo=ip210.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12SXUA-00042x-00; Tue, 7 Mar 2000 22:50:10 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Red Herring #1--DeCSS Date: Wed, 08 Mar 2000 03:48:49 GMT Message-ID: <38c5c85b.40984524@mail.tiac.net> References: <38c38951.26301622@mail.tiac.net> <38c95ead.56277258@mail.tiac.net> <20000307175353.A5007@localhost> In-Reply-To: <20000307175353.A5007@localhost> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id VAA10466 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 7 Mar 2000 17:53:53 -0700, Paul Fenimore wrote: >About the Cabinet of Dr. Caligari: > >As Ron Gustavson told me earlier, the liner notes say that the picture >frames have been colorized. Ron, do you know if artifacts have also been >removed, or not? I'm asking because, 17 USC 103 says, If, by artifacts, you mean visible defects (processing errors, dust, etc.) then I'd say no. In fact, as the liner notes (below) mention, some reels have a translucent horizontal stripe going across the top of the frame. The decision to emulate early silent film tinting practice to introduce drama to different reels is in harmony with the producers' decision to replace the 1923 German plain text titles with English graphic ones that are reminiscient of the original German graphic titles. (By graphic titles, I mean hand-painted placards for the silent film dialogue.) One interesting question to ask might be-- If they had the original 1920 film to copy the graphic titles from, why did they use a 1923 re-issue for the major body of the film? [liner notes] A Note on this Edition This DVD version ot THE CABINET OF DR. CALIGARI is digitally mastered at the visually-correct speed of 18 frames per second from a fine, full frame early-generation 35mm print of the1923 German re-issue. It is color tinted in several shades of blue, brown, rose, and green according to one of the color plans followed in the film's different releases during the silent era. Accurate new English translation titles are graphic reproductions of the beautiful hand-painted Expressionist titles which were an especially striking feature of the 1920 release (although they had been replaced by plain white-on-black titles by 1923, even in Germany, in an effort lo "normalize" the film). Some scenes display a translucent line near the top of the frame. This is a defect carried over from the original film copy and its inclusion seemed greatly preferable to cropping out part of the picture; it is not a defect in this DVD. A new musical score for string orchestra, composed and conducted by Timothy Brock, was inspired by German avant-garde music from the early 20th century. Recorded in digital stereo, it beautifully complements THE CABINET OF DR. CALIGARI. This edition contains an exclusive audio essay by scholar Mike Budd and a selection of original graphic materials, all accessed via the on screen menu. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:22:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24981 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:22:31 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA24978 for ; Tue, 7 Mar 2000 22:22:30 -0500 Received: (qmail 14963 invoked from network); 8 Mar 2000 04:31:27 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 04:31:27 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA23092; Tue, 7 Mar 2000 20:35:49 -0800 Date: Tue, 7 Mar 2000 20:35:49 -0800 Message-Id: <200003080435.UAA23092@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >Good reverse engineering examples. Let's press ahead for more of these. > >At 10:32 AM 3/7/00 -0500, rst@ai.mit.edu wrote: >I imagine that Sony can now take another tack, saying that its BIOS is an >"access control device" protecting the copyrighted works on Playstation >games. What happens then? Is Connectix's Virtual Game Station in the same >boat as DeCSS? > >--Wendy No they can't. The BIOS is the ignition not the key. I need my PC's BIOS to boot my PC regardless if I have rights to the Linux partition (meaning I have a login) or not. And even if the BIOS had a lock on it, it wouldn't matter. It would be a lock on a BIOS. Not simply a BIOS. BIOS mean Basic Input Output System is pretty general purpose. Just like the write protect tab on 5.25" floppy can be there or not. It's a tab on a floppy. separate functions. Separate objects. Just the same casing. Rares > >wendy@seltzer.com || wseltzer@kramerlevin.com >http://cyber.law.harvard.edu/seltzer.html > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:23:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25573 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:23:41 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA25569 for ; Tue, 7 Mar 2000 22:23:40 -0500 Received: (qmail 8456 invoked by uid 60001); 8 Mar 2000 04:36:33 -0000 Message-ID: <20000308043633.8455.qmail@web507.mail.yahoo.com> Received: from [24.28.154.65] by web507.mail.yahoo.com; Tue, 07 Mar 2000 20:36:33 PST Date: Tue, 7 Mar 2000 20:36:33 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Filing a strategy? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > > 4. Claims DeCSS isn't a "access control device" since it protects > > some non-copyrighted material > > Uh.. I had to go back and read it for myself. Yup, it says this. > > Of course DeCSS isn't an access control device; it doesn't protect > anything. CSS is the access control device. I believe what they > mean to say here is that DeCSS isn't an access > control *circumvention* device. Their argument is basically that if you protect anything that is public domain, then you it's not circumvention. It's an interesting idea. The definition of circumvention depends on lack of authority from 'the' copyright holder. Different pieces of an individual work may have different copyright holders or none at all. This raises some troubling questions: 1. If one copyright holder says yes and one says no, who wins. Either way, at least one is denied their right to control access. 2. Who speaks for the public domain? If permission to access this isn't granted always, then property is taken from the public domain. 3. What happens if public domain content is mixed with copyrighted content? This is a variation on number 1. The law is clearly defective: 'the' copyright holder is ill-defined __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:25:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26865 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:25:58 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA26861 for ; Tue, 7 Mar 2000 22:25:56 -0500 Received: (qmail 15284 invoked from network); 8 Mar 2000 04:34:53 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 04:34:53 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA23305; Tue, 7 Mar 2000 20:39:16 -0800 Date: Tue, 7 Mar 2000 20:39:16 -0800 Message-Id: <200003080439.UAA23305@ns1.filetron.com> Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Content-Type: multipart/mixed; boundary="----------=_952490356-23303-0" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format... ------------=_952490356-23303-0 Content-Type: text/plain Content-Disposition: inline greslin@linuxpower.org wrote: >On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: >> >> I imagine that Sony can now take another tack, saying that its BIOS is an >> "access control device" protecting the copyrighted works on Playstation >> games. What happens then? Is Connectix's Virtual Game Station in the same >> boat as DeCSS? > >I sort of doubt it. I was looking over the SvC decision the other day, for >a question on the FAQ. Connectix has a number of factors on it's side that >DeCSS doesn't have: > >1. Legitimate reverse engineering via mapping the function space, rather >than by direct disassembly. The decision seems to indicate that had they >arrived at their final product via direct disassembly, the court decision >might well have come down against them. I think this distinction is an >extremely important one - according to the judge's findings of fact, >Connectix did not directly examine Playstation code in the process of >trying to emulate it. > >2. The Connectix player only plays about 100 or so games. This tends to >support point #1; had the player been able to play *all* the games, then >there would have been considerable question that Connectix had not directly >disassembled code. Limited functionality is a pretty good indicator that >the function space had been RE'd and not the implementation itself. Now >if we could show that DeCSS only scrambles *some* DVD's, then this could >be considered indirect evidence that there was no intellectual property >theft. Unfortunately I don't think that is the case. > >3. A BIOS would probably be very difficult to label as an access control >device, on a technical level. This would be the hardware equivalent of >Microsoft calling the Windows API an access control device; yes, they could >do it, but it would be an uphill fight all the way. You could march a >line of expert witnesses five miles long into the court room to refute it. >To begin with, the primary function of a BIOS is not to prevent >unauthorized access. > >4. While the BIOS would be difficult to call an access control device, >there has never been a question since day one that CSS *is* an access >control device. Very little backpedalling necessary. > >I'm of course always open to being wrong. But this is how it seems to me, >after reading the 2/10 decision. > >The real killer here is the reverse engineering issue. A number of people >are suggesting that the Xing player was "reverse engineered" by direct >disassembly rather than mapping the function space in a clean-room scenario. >If this is truly the case, then it puts DeCSS into a completely different >game than Connectix, because then it can be claimed as design theft or >something similar. The BIOS is the ignition not the key. >Pardon me for interrupting. :) > >Rob Warren >greslin@linuxpower.org >www.iag.net/~aleris > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com ------------=_952490356-23303-0 Content-Type: text/plain ; name="NIKI.CPP" Content-Disposition: inline; filename="NIKI.CPP" Content-Transfer-Encoding: base64 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:29:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA30302 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:29:53 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA30284 for ; Tue, 7 Mar 2000 22:29:52 -0500 Received: (qmail 15636 invoked from network); 8 Mar 2000 04:38:49 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 04:38:49 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA23606; Tue, 7 Mar 2000 20:43:12 -0800 Date: Tue, 7 Mar 2000 20:43:12 -0800 Message-Id: <200003080443.UAA23606@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org wrote: >On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: >> >> I imagine that Sony can now take another tack, saying that its BIOS is an >> "access control device" protecting the copyrighted works on Playstation >> games. What happens then? Is Connectix's Virtual Game Station in the same >> boat as DeCSS? > >The real killer here is the reverse engineering issue. A number of people >are suggesting that the Xing player was "reverse engineered" by direct >disassembly rather than mapping the function space in a clean-room scenario. >If this is truly the case, then it puts DeCSS into a completely different >game than Connectix, because then it can be claimed as design theft or >something similar. The BIOS is the ignition not the key. I think Rob's right. If of course direct disassembly was used. But dirrect disassembly of what? I think we need to find what was disassembled. >Pardon me for interrupting. :) > >Rob Warren >greslin@linuxpower.org >www.iag.net/~aleris > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:35:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA01660 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:35:45 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA01657 for ; Tue, 7 Mar 2000 22:35:44 -0500 Received: (qmail 16240 invoked from network); 8 Mar 2000 04:44:41 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 04:44:41 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA24069; Tue, 7 Mar 2000 20:49:04 -0800 Date: Tue, 7 Mar 2000 20:49:04 -0800 Message-Id: <200003080449.UAA24069@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DNA research impossible without reverse engineering Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There was something about X-Ray crystallography used to see figure out the image of the helix. I'll look it up. Note I said to figure out. Which may even lend itself to the direct disassembly case. Also we need to get the word out. Reverse engineering is not a cloak and dagger game. Emulating a piece of hardware is not rocket science. The high tech spectre is spooking everyone into thinking this takes alien technology to build. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 22:40:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03614 for dvd-discuss-outgoing; Tue, 7 Mar 2000 22:40:30 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA03611 for ; Tue, 7 Mar 2000 22:40:29 -0500 Received: (qmail 16600 invoked from network); 8 Mar 2000 04:49:26 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 04:49:26 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA24372; Tue, 7 Mar 2000 20:53:49 -0800 Date: Tue, 7 Mar 2000 20:53:49 -0800 Message-Id: <200003080453.UAA24372@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org wrote: >On Tue, Mar 07, 2000 at 02:06:58PM -0800, Bryan Taylor wrote: >> >> 4. Claims DeCSS isn't a "access control device" since it protects some >> non-copyrighted material > >Uh.. I had to go back and read it for myself. Yup, it says this. > >Of course DeCSS isn't an access control device; it doesn't protect anything. >CSS is the access control device. I believe what they mean to say here is >that DeCSS isn't an access control *circumvention* device. This needs to be ammended quick. >Rob Warren >greslin@linuxpower.org >www.iag.net/~aleris Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 23:03:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11323 for dvd-discuss-outgoing; Tue, 7 Mar 2000 23:03:31 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA11318 for ; Tue, 7 Mar 2000 23:03:29 -0500 Received: (qmail 19029 invoked from network); 8 Mar 2000 05:12:26 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 05:12:26 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id VAA27263; Tue, 7 Mar 2000 21:16:49 -0800 Date: Tue, 7 Mar 2000 21:16:49 -0800 Message-Id: <200003080516.VAA27263@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >On Tue, Mar 07, 2000 at 01:07:12PM -0500, greslin@linuxpower.org wrote: >> On Tue, Mar 07, 2000 at 11:52:49AM -0500, Wendy Seltzer wrote: >Sorry, I still haven't read Sony v. Connectix. Are you saying that in >order to map the function-space they simply made calls to the BIOS entry >points with varying number of arguments, and waited for the thing to crash? > >If so, getting the functionality of the entry point must be even more fun. > >[ ... ] You can study what the software needs in order to run. You can't hide instruction sets. If you did you'd never make any money. Paranoid dopes like Gates get lucky sometimes. >> 3. A BIOS would probably be very difficult to label as an access control >> device, on a technical level. This would be the hardware equivalent of >> Microsoft calling the Windows API an access control device; yes, they could >> do it, but it would be an uphill fight all the way. You could march a >> line of expert witnesses five miles long into the court room to refute it. >> To begin with, the primary function of a BIOS is not to prevent >> unauthorized access. It's the ignition. Not the key. >"Primary" purpose keeps coming up with regard to access control. Primary >purpose isn't an issue for access control. "Primarily" language in 1201 >only applies to circumvention. The language in (a)(3)(B) says nothing >about "primary": > > (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. > >Concievably, this means a "minor purpose" of access control turns on >1201(a). > >The "primarily" stuff is in 1201(a)(2)(A) and (b)(1)(A). > >I agree that as a technical matter, calling a whole BIOS "access control" >is unreasonable, but 1201 is plenty unreasonable already. I'm not sure >Sony couldn't do what Wendy is suggesting. That would suck. I'm sorry you cannot get stone from a quary because a little boy threw a rock. Therefore quarries are forbidden. Okay somebody shoot me. >I'm still getting up to speed on this part of it. I'm not sure how to >take this one head-on. There is always the flanking maneuver --- >U.S. v. Paramount 334 U.S. 131 (1948). > > >Paul Fenimore Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 23:26:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15288 for dvd-discuss-outgoing; Tue, 7 Mar 2000 23:26:05 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA15285 for ; Tue, 7 Mar 2000 23:26:04 -0500 Received: (qmail 11479 invoked by uid 502); 8 Mar 2000 05:41:01 -0000 Date: Wed, 8 Mar 2000 00:41:01 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000308004101.A11473@linuxpower.org> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> <20000307130712.E10059@linuxpower.org> <20000307125105.A2393@localhost> <20000307165105.D10410@linuxpower.org> <200003072307.SAA04846@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <200003072307.SAA04846@soggy-fibers.ai.mit.edu>; from Robert S. Thau on Tue, Mar 07, 2000 at 06:07:14PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 06:07:14PM -0500, Robert S. Thau wrote: > greslin@linuxpower.org writes: > > From what I understand from the judge's decision, one of the > > Connectix techs downloaded a copy of the BIOS from the Internet > > somewhere and started running it against their own hardware while > > watching the interaction. They took their observations and built a > > function spec from it, and then built the emulator from the spec. > > They obviously realized that Sony would sue them over it; they > > followed proper clean room RE procedures to the letter. > > I'm glad to see you now recognize that disassembly *can* be a part of > cleanroom development. As I've already said (perhaps the posts got caught in network lag and haven't reached you yet), I spoke out of turn here. When I'm wrong, I admit it. Thanks for clarifying the record. I'll go back over SvA again and see what corrections I can make to the FAQ in this regard. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 23:38:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18222 for dvd-discuss-outgoing; Tue, 7 Mar 2000 23:38:54 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA18219 for ; Tue, 7 Mar 2000 23:38:52 -0500 Received: (qmail 11487 invoked by uid 502); 8 Mar 2000 05:53:50 -0000 Date: Wed, 8 Mar 2000 00:53:50 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Message-ID: <20000308005350.B11473@linuxpower.org> References: <20000308043633.8455.qmail@web507.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000308043633.8455.qmail@web507.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 07, 2000 at 08:36:33PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 08:36:33PM -0800, Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > > 4. Claims DeCSS isn't a "access control device" since it protects > > > some non-copyrighted material > > > > Uh.. I had to go back and read it for myself. Yup, it says this. > > > > Of course DeCSS isn't an access control device; it doesn't protect > > anything. CSS is the access control device. I believe what they > > mean to say here is that DeCSS isn't an access > > control *circumvention* device. > > Their argument is basically that if you protect anything that is public > domain, then you it's not circumvention. It's an interesting idea. The > definition of circumvention depends on lack of authority from 'the' > copyright holder. Different pieces of an individual work may have > different copyright holders or none at all. This raises some troubling > questions: > > 1. If one copyright holder says yes and one says no, who wins. Either > way, at least one is denied their right to control access. > 2. Who speaks for the public domain? If permission to access this isn't > granted always, then property is taken from the public domain. > 3. What happens if public domain content is mixed with copyrighted > content? This is a variation on number 1. > > The law is clearly defective: 'the' copyright holder is ill-defined. I tend to agree. I'll admit; I thought the "the" bit was wordplay and quibbling at first. It just seems at first glance a bit desperate. But the more it gets discussed and the more I find out about copyright law, the more it seems to be very relevant. We should probably assume that for the purposes of the MPAA cases, that the MPAA will claim that they represent the interests of the copyright holders; point #1 above would probably be responded to with the claim that the MPAA serves as a proxy to those authorizing interests rather than serving as the authorizing interest itself. My comment, incidentally, was regarding what's obviously a typo in the letter; it should read either than CSS is not an access control device or that DeCSS isn't a circumvention device. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 7 23:55:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA21545 for dvd-discuss-outgoing; Tue, 7 Mar 2000 23:55:59 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA21542 for ; Tue, 7 Mar 2000 23:55:59 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id BAA16782 for ; Wed, 8 Mar 2000 01:09:01 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id BAA06760; Wed, 8 Mar 2000 01:08:59 -0500 (EST) Date: Wed, 8 Mar 2000 01:08:59 -0500 (EST) Message-Id: <200003080608.BAA06760@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <4.2.2.20000307110202.00b42510@law.harvard.edu> References: <200003071532.KAA02367@soggy-fibers.ai.mit.edu> <4.2.2.20000307110202.00b42510@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > I imagine that Sony can now take another tack, saying that its BIOS is an > "access control device" protecting the copyrighted works on Playstation > games. What happens then? Is Connectix's Virtual Game Station in the same > boat as DeCSS? Regarding the BIOS at issue in Sony v. Connectix, the answer is pretty clearly not. However, the other two video game cases --- Sega v. Accolade, and Nintendo v. Atari, both involved systems where the video game players would only play games which had particular access control sequences embedded in their object code. In each case, the manufacturer claimed copyright infringement because the defendant's games included copies of the key sequence, and in each case the courts rejected the claim, at least in part because they regarded these sequences as purely functional and outside the domain of copyright. It might be a stretch to fit this into the scope of 17 USC 1201, because the mechanism is regulating access to the player, and not the material being played on it. Also, we have the reverse engineering exception which, per the legislative history, was designed to preserve the rights of engineers under Sega. Still, these cases do involve access control mechanisms, albeit trivial ones (though they're only part of what was at issue, and in the Sega case, a small part), and if Nintendo's and Sega's lawyers are anything like Sony's, then to judge by Sony v. Connectix, they're adept at stretching a law at least as far as it was meant to go. So to that extent, at least, Atari and Accolade (and other producers of nonlicensed games for Playstations and Dreamcasts) might want to start watching their backs... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 00:32:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25669 for dvd-discuss-outgoing; Wed, 8 Mar 2000 00:32:19 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA25645 for ; Wed, 8 Mar 2000 00:32:18 -0500 Received: (qmail 24903 invoked by uid 60001); 8 Mar 2000 06:45:20 -0000 Message-ID: <20000308064520.24902.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Tue, 07 Mar 2000 22:45:20 PST Date: Tue, 7 Mar 2000 22:45:20 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Filing a strategy? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > We should probably assume that for the purposes of the MPAA cases, > that the MPAA will claim that they represent the interests of the > copyright holders; point #1 > above would probably be responded to with the claim that the MPAA > serves as a proxy to those authorizing interests rather than serving as > the authorizing interest itself. Hmmm. Even if true, does this give them standing? If they sue, couldn't one of the actual copyright holders sue again? Are they the "proxy" or is it the DVD CCA? Isn't the DVD CCA the entity that actually determines who gets to use CSS? Figuring out who has standing to sue when the authority is not defined in a meaningful way in the law is pretty difficult. At first I thought the points 1-3 in the memo were lame, but then I realized that it's the proper way to attack the defect in the law. How does the MPAA prove they are the correct party to bring suit? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 01:09:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA28856 for dvd-discuss-outgoing; Wed, 8 Mar 2000 01:09:31 -0500 Received: from dial209.roadrunner.com (dial91.cybermesa.com [209.12.75.91]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA28853 for ; Wed, 8 Mar 2000 01:09:28 -0500 Received: (from paul@localhost) by dial209.roadrunner.com (8.8.7/8.8.7) id AAA00696 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 00:25:38 -0700 Date: Wed, 8 Mar 2000 00:25:37 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DNA research impossible without reverse engineering Message-ID: <20000308002537.A574@localhost> References: <200003080449.UAA24069@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200003080449.UAA24069@ns1.filetron.com>; from rmarian@linuxstart.com on Tue, Mar 07, 2000 at 08:49:04PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The structure of DNA was figured out by James D. Watson and Francis Crick with some help from Maurice Wilkins and with the aid of x-ray data mis-appropriated (some suspect stolen) from Rosalind Franklin. Watson, Crick and Wilkins got a 1962 Nobel Prize for their 1951-1952 work. You can read Watson's take on the events in "The Double Helix", J. D. Watson, Mentor Press, NY (1969). I don't see the connection to reverse engineering. Please enlighten me. Paul Fenimore On Tue, Mar 07, 2000 at 08:49:04PM -0800, Rares Marian wrote: > There was something about X-Ray crystallography used to see figure out the image of the helix. I'll look it up. Note I said to figure out. Which may even lend itself to the direct disassembly case. > > Also we need to get the word out. Reverse engineering is not a cloak and dagger game. Emulating a piece of hardware is not rocket science. The high tech spectre is spooking everyone into thinking this takes alien technology to build. > > Rares > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 07:19:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA21344 for dvd-discuss-outgoing; Wed, 8 Mar 2000 07:19:01 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA21341 for ; Wed, 8 Mar 2000 07:18:59 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id PAA18361 for ; Wed, 8 Mar 2000 15:32:00 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 8 Mar 2000 15:31:58 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 7 Mar 2000, Robert S. Thau wrote: >The Nintendo case is *much* more apropos on this point (it involved a >genuine access control mechanism), which is why I really regret not >having being able to cite an on-line copy of the opinion. Comes to my mind, do we have any examples of reverse engineering of *cryptography* based access controls which have facilitated the advancement of technology and/or public good? These might be even more to the point. Some far fetched ideas in the context of PC's (I have little knowledge of console wars and such): - I think that objectionable content does not invalidate copyright. Some viruses (even) contain copyright notices and are encrypted - research would necessarily call for removing the encryption. Does this count as access control under 1201? Could it be used to show 1201 to be overbroad? Perhaps by first stretching the point a bit with 'harmless' viruses which simply display/play some audiovisual stuff. - How about the blocked site lists of censorware? These are probably under copyright, at least if human created and if they contain rules in addition to just site addresses. They are commonly encrypted to control access by the general public. Breaking the code has more than once revealed dubious practices on behalf of the manufacturer (blocking of sites critical towards the product etc.) and so contributed to common good. Neither example really qualifies as cryptographic research, since the encryption methods are usually trivial and we do not 'identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works' as section 1201 requires. In the first case, the aim is not 'interoperation' in the usual sense of the word, either, so the RE exception should not apply. In the latter case the encrypted stuff is data, not program code. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 07:24:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA21605 for dvd-discuss-outgoing; Wed, 8 Mar 2000 07:24:17 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA21602 for ; Wed, 8 Mar 2000 07:24:15 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id PAA19561 for ; Wed, 8 Mar 2000 15:37:17 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 8 Mar 2000 15:37:16 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Damage control Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think it would also be useful to think beforehand about what happens if MPAA and DVD CCA win their cases. Civil remedies? Can it be argued that after the first copy of a program has been put online, further copies constitute no extra damage? After all when physical circumvention boxes are manufactured, each box inflicts a measurable damage (the buyer doesn't buy the protected goods), but with software, a single copy can be copied in unlimited amounts and it is virtually impossible to show that any damage has originated from copying beyond the first publication of the circumvention software. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 07:35:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA23237 for dvd-discuss-outgoing; Wed, 8 Mar 2000 07:35:23 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA23234 for ; Wed, 8 Mar 2000 07:35:22 -0500 Received: (qmail 12480 invoked by uid 502); 8 Mar 2000 13:50:23 -0000 Date: Wed, 8 Mar 2000 08:50:23 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Message-ID: <20000308085023.A11585@linuxpower.org> References: <20000308064520.24902.qmail@web508.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000308064520.24902.qmail@web508.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 07, 2000 at 10:45:20PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 07, 2000 at 10:45:20PM -0800, Bryan Taylor wrote: > > > > --- greslin@linuxpower.org wrote: > > We should probably assume that for the purposes of the MPAA cases, > > that the MPAA will claim that they represent the interests of the > > copyright holders; point #1 > > above would probably be responded to with the claim that the MPAA > > serves as a proxy to those authorizing interests rather than serving > as > > the authorizing interest itself. > > Hmmm. Even if true, does this give them standing? If they sue, couldn't > one of the actual copyright holders sue again? > > Are they the "proxy" or is it the DVD CCA? Isn't the DVD CCA the entity > that actually determines who gets to use CSS? > > Figuring out who has standing to sue when the authority is not defined > in a meaningful way in the law is pretty difficult. At first I thought > the points 1-3 in the memo were lame, but then I realized that it's the > proper way to attack the defect in the law. > > How does the MPAA prove they are the correct party to bring suit? I doubt they have to; the filed complaint in the NY and CN suits state the plaintiffs not as the MPAA, but as the individual copyright holders: Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century Fox. http://www.eff.org/pub/Intellectual_property/MPAA_DVD_cases/20000114_mpaa_ ny_complaint.html If the case were filed as "MPAA vs. Defendents", then yes, we could maybe argue this point. But as it stands, I don't think we can argue that the filed plaintiffs aren't the authorized copyright holders; the most we can say is that the MPAA attorneys aren't legal representatives of the holders of copyright. The CA case is a different deal, because AFAIK, these seven studios don't actually own CSS or license it; that's not the MPAA's department. That's Matshusita and the guys who collectively own the patents on the tech. It seems to me that these are precisely the guys who would have to sue for breach of trade secret; the copyright holders themselves don't have the authority, because they're only licensed users of CSS and not the actual owners of the technology. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 07:39:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA23527 for dvd-discuss-outgoing; Wed, 8 Mar 2000 07:39:22 -0500 Received: from mx01.gis.net (scribe.gis.net [208.218.130.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA23524 for ; Wed, 8 Mar 2000 07:39:22 -0500 From: breeve@ibm.net Received: from left (ppp29-200.gis.net [216.41.29.200]) by mx01.gis.net (8.8.8/8.8.8+pyrd) with SMTP id IAA26306 for ; Wed, 8 Mar 2000 08:52:20 -0500 (EST) Message-Id: <3.0.6.32.20000308085211.00857480@pop6.ibm.net> X-Sender: breeve@pop6.ibm.net (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Wed, 08 Mar 2000 08:52:11 -0500 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Hon. Lewis A. Kaplan In-Reply-To: <3.0.6.32.20000228215524.00854100@pop6.ibm.net> References: <20000229015939.10985.qmail@web505.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id HAA23525 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ---- To many of the readers of this list, this post is worthless. Great. Ignore it. Nevertheless, some might want to take a bit of a break from today's schedule to read a few snippets from the proceeds of Lewis Kaplan's work on the bench. They are presented in no particular order, on no particular subject, but they may provide something of a context in which to read the opinion accompanying the preliminary injunction. Kaplan was appointed to the bench in about 1994, was formerly with Paul, Weiss, Rifkind, Wharton & Garrison, 345 Park Ave. NYC. FROM: /www.cni.org/Hforums/cni-copyright/1997-02/1312.html A ''LISTEN LINE'' service which enables subscribers to listen to distant radio broadcasts by telephone constitutes ''fair use'' of the broadcasts, not copyright infringement, a federal judge in Manhattan has ruled. Applying copyright law to another new technology form, Southern District Judge Lewis A. Kaplan on Friday dismissed an infringement suit brought by radio network giant Infinity Broadcasting Corp. against a Texas listen-line operator, Wayne Kirkwood, in Infinity Broadcasting v. Kirkwood, 96 Civ. 0885. FROM: /www.anusha.com/no-rent.htm Federal Judge Rules that Proceedures Required by New York State Law for Landlords to Collect Rent are Illegal On December 22, 1997, United States District Judge Lewis A. Kaplan ruled that pigs have wings. Judge Kaplan left the question of whether pigs could fly for the jury to decide. On December 22, 1997, in the case of Romea vs. Heiberger & Associates, 97 Civ. 4681 (LAK) United States District Judge for the Southern District of New York Lewis A. Kaplan ruled that "the broad language of the [Fair Debt Collection Practices Act's] definition of 'communication' will have a significant effect on New York's statutory scheme for the fair and efficient resolution of landlord-tenant disputes." FROM: www.westgroup.com/products/newsletter/lce/page9.htm LLP Isn't Like a Corporation for Jurisdictional Purposes By Robert Bigelow What is the citizenship of Limited Liability Partnership (LLP), when it sues in Federal Court? In Mudge Rose etc. v. Pickett, 11 F. Supp. 2d 449 (S.D. N. Y. 1998) Judge Lewis A. Kaplan concluded that plaintiff law firm, which had converted from a general partnership to an LLP in June 1995 and then decided to cease operations as of December 15, 1995, was a citizen of every state when one or more of its partners was also a citizen. And this was so even though every partner resigned on that December day. FROM : http://www.wrestlenet.com/elite/reports/47.html WWF wins major court victory By: "The Slammer" Peter Sciretta Date: March 16, 1999 at 6:32pm World Wrestling Federation Wins Major Victory Against Simitar Entertainment A federal judge has issued a preliminary injunction against Simitar Entertainment stopping the continued distribution of Simitar's album ``Slammin' Wrestling Hits,'' released under the Beast Records imprint, and requiring Simitar to recall those copies already shipped. The order was issued by United States District Judge Lewis A. Kaplan in a copyright infringement action brought against Simitar by Titan Sports, Inc., which owns the World Wrestling Federation, and Cherry Lane Music Publishing Company, Inc. alleging that 13 of the 15 tracks on Simitar's album utilize musical compositions which are owned and controlled by Titan and Cherry Lane without Simitar having obtained the necessary mechanical licenses for such use. FROM: www.princeton.edu/pr/news/98/c/0504-clips.htm The New York Times Copyright 1998 The New York Times Company April 25, 1998, Saturday HEADLINE: Sentence by Judge Reflects Historic Documents' Value BYLINE: By BENJAMIN WEISER Saying that the theft of hundreds of priceless maps and documents from Columbia University had deprived generations of scholars from being able to study and learn from the past, a Federal judge in Manhattan yesterday sentenced the man responsible to five years in prison. The man, Daniel Spiegelman, was also ordered to pay a yet undetermined amount of restitution to Columbia for the stolen works, which were valued at $1.3 million. The judge, Lewis A. Kaplan, seemed determined to answer a seemingly unanswerable riddle: What is the value of something that is priceless? … FROM: http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3 /96-7938.opn.html Defendant The Gap, Inc. d/b/a Old Navy Clothing Company ("Gap"), appeals from a final judgment of the United States District Court for the Southern District of New York, Lewis A. Kaplan, Judge , permanently enjoining Gap from using the term "100%W" alone or with other terms as a trademark in connection with the manufacture, promotion, or distribution of its personal care products and bathroom furnishings and implements. The district court found that Gap's use of terms such as "100%W BODY CARE" on its products was likely to cause consumers to confuse Gap's products with a moisturizer product manufactured by plaintiff Estee Lauder Inc. ("Lauder") and marketed under Lauder's trademark "100%W." On appeal, Gap contends principally that the district court erred in finding Lauder's "100%W" mark protectable and in finding that Gap's use of a mark that includes "100%W" in conjunction with other terms would create a likelihood of consumer confusion. We agree that the district court erred in its likelihood-of-confusion analysis, and we accordingly reverse. FROM: www.cll.com/joint.htm Larson's estate defended against Thomson's claim on two grounds. First, the estate argued that Thomson was not a joint author under § 101 because her contributions were not copyrightable. In a July 23 bench opinion, Judge Lewis A. Kaplan of the Southern District rejected this argument, finding that Thomson's specific contributions to the dialogue alone were plainly copyrightable and more than de minimis: "[O]n any standard of what sort of contribution is copyrightable, whatever specific words she contributed meet that standard."4 The court's finding as to copyrightability was admittedly unnecessary, however, because under the estate's second line of argument regarding Larson's intent, the court found that "[t]here is simply no proof persuasive to me that Jonathan Larson ever intended, despite all his warm feelings and high regard for Lynn Thomson, that she have the sort of interest in the product that is necessary, in my view, to have made her a joint author."5 The basis for the court's analysis of the intent issue was the Second Circuit's 1991 decision in another theatrical case, Childress v. Taylor.6 In Childress, the Second Circuit held that for collaborators merely to meet the statutory language requiring an intent on the part of each to "merge" his or her contribution into a "unitary whole" was insufficient to make them joint authors. Beyond that, the joint authors must also "regard themselves as joint authors," or "entertain in their minds the concept of joint authorship, whether or not they underst[and] precisely the legal consequences of that relationship."7 Judge Kaplan conceded that the Childress intent requirement was "a mite Delphic," at least when taken out of context, but interpreted it to require "an intent that there be a sharing of the indicia of ownership and authorship."8 Benjamin Reeve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 07:49:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA24199 for dvd-discuss-outgoing; Wed, 8 Mar 2000 07:49:54 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA24196 for ; Wed, 8 Mar 2000 07:49:53 -0500 Received: (qmail 12549 invoked by uid 502); 8 Mar 2000 14:04:55 -0000 Date: Wed, 8 Mar 2000 09:04:55 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Damage control Message-ID: <20000308090455.D11585@linuxpower.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Sampo A Syreeni on Wed, Mar 08, 2000 at 03:37:16PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 03:37:16PM +0200, Sampo A Syreeni wrote: > I think it would also be useful to think beforehand about what happens if > MPAA and DVD CCA win their cases. Civil remedies? >From the 3/6/2000 FAQ, Question 2.4.6: (http://www.iag.net/~aleris/dvdfaq.txt) "17 USC 1203 grants the court the power to award several types of civil remedies, including attorneys fees, injunctions, damages, cost recovery and destruction or modification of the infringing device. Damages can either be actual or statutory; statutory damages range from $200 to $2500 USD per 1201 violation. 17 USC 1203 does not set limits on actual damages." Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 09:11:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA06236 for dvd-discuss-outgoing; Wed, 8 Mar 2000 09:11:27 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA06233 for ; Wed, 8 Mar 2000 09:11:26 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA24900 for ; Wed, 8 Mar 2000 10:24:29 -0500 (EST) Date: Wed, 8 Mar 2000 10:24:29 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <200003080435.UAA23092@ns1.filetron.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 7 Mar 2000, Rares Marian wrote: > Wendy Seltzer wrote: > >Good reverse engineering examples. Let's press ahead for more of these. > > > >At 10:32 AM 3/7/00 -0500, rst@ai.mit.edu wrote: > >I imagine that Sony can now take another tack, saying that its BIOS is an > >"access control device" protecting the copyrighted works on Playstation > >games. What happens then? Is Connectix's Virtual Game Station in the same > >boat as DeCSS? > > > >--Wendy > > No they can't. The BIOS is the ignition not the key. > > I need my PC's BIOS to boot my PC regardless if I have rights to the Linux partition (meaning I have a login) or not. And even if the BIOS had a lock on it, it wouldn't matter. It would be a lock on a BIOS. Not simply a BIOS. BIOS mean Basic Input Output System is pretty general purpose. Just like the write protect tab on 5.25" floppy can be there or not. It's a tab on a floppy. separate functions. Separate objects. Just the same casing. > > Rares Yes, but comparing the BIOS of an IBM PC to a playstation's BIOS is somehat difficult. Essentially, the IBM PC BIOS (the one reverse engineered by Compaq and possibly others) was very simple. Conversely, the chipset that performs similar functions on a Macintosh contains the Macintosh Toolbox, which contains code for drawing pointers, menus, etc. Reverse engineering the Macintosh ROM (or BIOS, if you prefer) would have been a much more difficult process. If you want to analyse the Playstation BIOS for the sake of legal argument, you have to look at what features the Playstation BIOS provides, not what your PC's BIOS provides. Jeremy P.S. Isn't Award planning to incorporate advertising on it's BIOSes, to be possibbly updated via the internet? I'd expect that should their plans come to fruition, consumers' attempts to alter/disable the advertising will result in a number of interesting legal opinions. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 09:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA09787 for dvd-discuss-outgoing; Wed, 8 Mar 2000 09:25:44 -0500 Received: from mtiwmhc25.worldnet.att.net (mtiwmhc25.worldnet.att.net [204.127.131.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA09784 for ; Wed, 8 Mar 2000 09:25:43 -0500 Received: from alaptop.hotwired.com ([12.78.116.95]) by mtiwmhc25.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000308153836.XONJ17170.mtiwmhc25.worldnet.att.net@alaptop.hotwired.com> for ; Wed, 8 Mar 2000 15:38:36 +0000 Message-Id: <4.3.0.20000308103617.00b4af00@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 10:36:48 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Writing two articles on the lawsuits, thislist In-Reply-To: <38C490D7.465A4A07@cdpage.com> References: <20000228161647.A23265@linuxpower.org> <20000223005341.P20634@linuxpower.org> <20000223143653.A23265@linuxpower.org> <20000224154609.A23265@linuxpower.org> <20000224180626.N23265@linuxpower.org> <20000228161647.A23265@linuxpower.org> <4.3.0.20000306190057.020d0aa0@pop.webcom.com> <38C45277.A6DA7205@cdpage.com> <20000306193443.A2324@arh1176.urh.uiuc.edu> <38C47680.3CBDEB61@cdpage.com> <4.3.0.20000306225958.00b5dcd0@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Two articles I wrote, one on this list: http://www.wired.com/news/politics/0,1283,34808,00.html http://www.wired.com/news/politics/0,1283,34779,00.html -Declan From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 09:49:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19103 for dvd-discuss-outgoing; Wed, 8 Mar 2000 09:49:20 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA19100 for ; Wed, 8 Mar 2000 09:49:19 -0500 Received: (qmail 21703 invoked from network); 8 Mar 2000 15:58:18 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 15:58:18 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id IAA24409; Wed, 8 Mar 2000 08:02:38 -0800 Date: Wed, 8 Mar 2000 08:02:38 -0800 Message-Id: <200003081602.IAA24409@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DNA research impossible without reverse engineering Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >The structure of DNA was figured out by James D. Watson and >Francis Crick with some help from Maurice Wilkins and with the >aid of x-ray data mis-appropriated (some suspect stolen) from >Rosalind Franklin. Watson, Crick and Wilkins got a 1962 Nobel Prize >for their 1951-1952 work. You can read Watson's take on the events in >"The Double Helix", J. D. Watson, Mentor Press, NY (1969). > >I don't see the connection to reverse engineering. Please >enlighten me. > What I'm saying is that they didn't see DNA directly. They had use various techniques to get a complete picture. I think of RE much like the six blind men and the elephant, the difference being that in Reverse Engineering each observation is considered in the context of a complete set of observations. My undestanding is they didn't just shine some xrays on to get a couple of pictures. They had to go through a laborius process of identify what they saw in theose x-ray photos. That is I don't think of having an x-ray to find out if you have broken bonesas reverse engineering. That's just applying knowledge to produce a report. Franklin, Watson, and Crick did in fact use reverse engineering techniques to figure out the DNA. It was the use of knowledge to discover new knowledge. I'm saying reverse engineering is a technique used every day in all sciences not just computer science. This is what I mean about busting this spectre of cops and robbers when it comes to high tech. >Paul Fenimore >On Tue, Mar 07, 2000 at 08:49:04PM -0800, Rares Marian wrote: >> There was something about X-Ray crystallography used to see figure out the image of the helix. I'll look it up. Note I said to figure out. Which may even lend itself to the direct disassembly case. >> >> Also we need to get the word out. Reverse engineering is not a cloak and dagger game. Emulating a piece of hardware is not rocket science. The high tech spectre is spooking everyone into thinking this takes alien technology to build. >> >> Rares >> >> Windows the other 70's technology. >> ---------------------- >> Do you do Linux? :) >> Get your FREE @linuxstart.com email address at: ttp://www.linuxstart.com Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 10:54:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA31199 for dvd-discuss-outgoing; Wed, 8 Mar 2000 10:54:11 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA31195 for ; Wed, 8 Mar 2000 10:54:06 -0500 Received: (qmail 21077 invoked by uid 60001); 8 Mar 2000 17:06:43 -0000 Message-ID: <20000308170643.21076.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Wed, 08 Mar 2000 09:06:43 PST Date: Wed, 8 Mar 2000 09:06:43 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Damage control To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > "17 USC 1203 grants the court the power to award several types of > civil remedies, including attorneys fees, injunctions, damages, cost > recovery and destruction or modification of the infringing device. > Damages can either be actual or statutory; statutory damages range > from $200 to $2500 USD per 1201 violation. > 17 USC 1203 does not set limits on actual damages." 1201(b)(1) also says "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution." Kaplan granted for the sake of arguement that DeCSS was protected speech, but his "balancing" arguement was then applied to permit the prior restraint. Is there any way to argue Kaplan didn't violate 1201(b)(1)? By the way, Computer Programs are copyrighted under the theory that they are 'literary works', even in object code format. Is this not enough to obtain First Amendment protection? A web site is 'the press' and a computer program is a 'literary work', so doesn't it follow that the First Amendment is at applicable using freedom of the press? ______________________ COMPUTER ASSOCIATES INTERNATIONAL vs. ALTAI United States Court Of Appeals For The Second Circuit 982 F.2d 693 "17 U.S.C. § 101. While computer programs are not specifically listed as part of the above statutory definition, the legislative history leaves no doubt that Congress intended them to be considered literary works. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.C.C.A.N. 5659, 5667" _____________________ APPLE COMPUTER, INC. vs. FRANKLIN COMPUTER CORPORATION United States Court Of Appeals For The Third Circuit No. 82-1582, 714 F.2d 1240 "Although section 102(a) does not expressly list computer programs as works of authorship, the legislative history suggests that programs were considered copyrightable as literary works. See H.R.Rep.No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5667 ("'literary works' . . . includes . . . computer programs") " ___________________________ COMPREHENSIVE TECHNOLOGIES INTERNATIONAL, Inc. vs. SOFTWARE ARTISANS United States Court Of Appeals For The Fourth Circuit No. 92-1837 , 3 F.3d 730 "Computer programs can simultaneously constitute "literary works" under federal copyright law, see 17 U.S.C.A. § 102(a)(1) (West Supp. 1993), and "processes" or "programs" under state trade secret law, see Va. Code Ann.§ 59.1-336. " __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 11:03:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA32740 for dvd-discuss-outgoing; Wed, 8 Mar 2000 11:03:50 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA32737 for ; Wed, 8 Mar 2000 11:03:49 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id MAA07978 for ; Wed, 8 Mar 2000 12:16:53 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA08656; Wed, 8 Mar 2000 12:16:52 -0500 (EST) Date: Wed, 8 Mar 2000 12:16:52 -0500 (EST) Message-Id: <200003081716.MAA08656@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: References: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A. Syreeni writes: > On Tue, 7 Mar 2000, Robert S. Thau wrote: > > >The Nintendo case is *much* more apropos on this point (it involved a > >genuine access control mechanism), which is why I really regret not > >having being able to cite an on-line copy of the opinion. > > Comes to my mind, do we have any examples of reverse engineering of > *cryptography* based access controls which have facilitated the advancement > of technology and/or public good? These might be even more to the point. It's not hard to find examples where security flaws of some widely distributed product were exposed through reverse engineering; some of the attacks on, say, Microsoft's VPN technology are one fairly well known example --- see http://www.counterpane.com/pptpv2-paper.html for an example of the sort of thing I'm talking about. (The interesting thing about this paper is that it discusses an improved protocol designed to resist attacks on an earlier version, discovered by the same authors via reverse engineering). NB that crypto research is explicitly cited in 17 USC 1201 as an allowable reason to perform circumvention. But it may be hard to sell Kaplan on the idea of 2600 as a research journal. N.B. I'm not saying that some people don't use it that way --- plenty of folks do; I'm saying that Kaplan may not buy it, at least not without a few very well-credentialed experts describing it that way. > Some far fetched ideas in the context of PC's (I have little knowledge of > console wars and such): [I'm reordering these....] > - How about the blocked site lists of censorware? These are probably under > copyright, at least if human created and if they contain rules in addition > to just site addresses. They are commonly encrypted to control access by the > general public. Breaking the code has more than once revealed dubious > practices on behalf of the manufacturer (blocking of sites critical towards > the product etc.) and so contributed to common good. *Excellent* point. Look at www.peacefire.org for examples of how lousy these cryptographically concealed block lists actually are --- the item at the top of the page now is a program to decrypt the I-Gear list; they rank 28 of the first 50 blocked URLs in the .edu domain as obvious mistakes; a few of these involve homosexuality (e.g., an essay on homosexuality in the bible), but the page on milk pasteurization is a more typical example. While you're there, check out the privacy problems they discovered in the I-Gear software, also by means of reverse engineering. Note also that when stuff like this is installed in public schools and libraries, there is a clear public policy interest in allowing the public to know what it's doing. The block lists are human created compilations, for the most part, but I'm not sure how many of them (if any) involve rules of nontrivial complexity... > - I think that objectionable content does not invalidate copyright. Some > viruses (even) contain copyright notices and are encrypted - research would > necessarily call for removing the encryption. Does this count as access > control under 1201? Could it be used to show 1201 to be overbroad? Perhaps > by first stretching the point a bit with 'harmless' viruses which simply > display/play some audiovisual stuff. The encryption in this case is designed to prevent access to the code, which is only meant to be run, not examined. So, we have a case of some content (the virus code) which is widely distributed, but which has access controls on it implemented by a technical mechanism. Whaddya know. I moved this behind the censorware case because I think buggy censorware might be a better example to use in court (particularly with the placement of the stuff in schools and libraries creating a fairly clear public policy issue regarding the accountability of the censorware providers). The virus idea is a nice way to preach to the converted, but I'm worried that it may strike others as pretty fanciful --- particularly since no virus writers are ever going to announce themselves to the world by becoming plaintiffs in such a suit (just *imagine* the countersuit)... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 11:12:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02651 for dvd-discuss-outgoing; Wed, 8 Mar 2000 11:12:26 -0500 Received: from smtp1.sisna.com (ismtp1.sisna.com [209.210.190.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA02648 for ; Wed, 8 Mar 2000 11:12:18 -0500 Received: from mail.pmbs.net [209.104.218.254] by smtp1.sisna.com with ESMTP (SMTPD32-6.00) id AC7266E0148; Wed, 08 Mar 2000 10:22:58 -0700 Received: from pmbs.net [216.190.11.236] by mail.pmbs.net with ESMTP (SMTPD32-6.00) id AC6A2150088; Wed, 08 Mar 2000 10:22:50 -0700 Message-ID: <38C7DE86.233DEA76@pmbs.net> Date: Thu, 09 Mar 2000 10:25:27 -0700 From: Steven Sanders X-Mailer: Mozilla 4.71 (Macintosh; I; PPC) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Suggestion Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hi, I'm not an attorney. I've been in seven lawsuits in the past 10 years. I know who looses. I know how the most money presents the best defense. I suggest you start a web site to get money which: 1. Gives users some value. 2. Explains how everyone on the internet looses if the movie people looses. 3. Explains how this is just the tip of the iceburg of what will follow if you loose. 4. Appeal for hundreds of thousands of people to each send in $10–100. (I'll send in $100.) 5. Perhaps get popular, existing websites to piggyback your cause for donations. (Napster through advertising?) The internet is the ideal way to do this since you need money FAST. A consolidated team of attorneys is better than a cabre of people, each with varying degree of commitment. Sincerely, Steven Sanders From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 11:47:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10931 for dvd-discuss-outgoing; Wed, 8 Mar 2000 11:47:31 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA10928 for ; Wed, 8 Mar 2000 11:47:28 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id JAA02489 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 09:58:18 -0800 Date: Wed, 8 Mar 2000 09:58:18 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000308095818.A13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Wed, Mar 08, 2000 at 03:31:58PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni writes: > - How about the blocked site lists of censorware? These are probably under > copyright, at least if human created and if they contain rules in addition > to just site addresses. They are commonly encrypted to control access by the > general public. Breaking the code has more than once revealed dubious > practices on behalf of the manufacturer (blocking of sites critical towards > the product etc.) and so contributed to common good. When Bennett Haselton released a new set of censorware blacklist decryption programs in the last two weeks, he specifically wondered whether he would be sued under the DMCA. So far, he hasn't heard from any lawyers, but if he does, I'll let this list know about it. Client-side censorware is a losing proposition in itself, but client-side censorware with secret blacklists is comparable to software DVD players with a secret algorithm. But potentially both could involve the DMCA. In the case of censorware, there is no "interoperability" issue at all; a group like Peacefire is publishing the results of reverse-engineering solely for criticism purposes (which is to say ridicule purposes -- to harm public opinion of censorware vendors and their products). I'll be interested to see what happens. Since Bennett Haselton made friends with a bunch of lawyers, he's gotten many fewer spurious threats of lawsuits. But that was Before The DMCA. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 11:58:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11683 for dvd-discuss-outgoing; Wed, 8 Mar 2000 11:58:16 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA11679 for ; Wed, 8 Mar 2000 11:58:13 -0500 Received: (qmail 10249 invoked by uid 60001); 8 Mar 2000 18:11:16 -0000 Message-ID: <20000308181116.10248.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Wed, 08 Mar 2000 10:11:16 PST Date: Wed, 8 Mar 2000 10:11:16 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Constitutional Limits to Copyright Power To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm going to try to take a crack at an essay on the Constitutional limits to the Copyright Power, which is one of the items Robin Gross asked for. I took the liberty of also talking about the commerce power. I've completed the basic essay, although I need to go back and and supporting cases to justify the points. Most of the points I have cases in mind, but I just haven't had time yet to insert them. Here's the draft: http://bioinformatics.ucsf.edu/bwtaylor/dvd/copyright_limits.txt Any feedback would be appreciated, but I'm not going to debate the points in it. The purpose of this essay is to advocate a position, not to be "fair" to both sides of the debate. If you have evidence that supports or refutes anything in particular, that would be most helpful. Also, I've been scratching out a quick reference to the various Surpreme Court cases regarding copyright. This is a work in progress, but others might benefit from it, or suggest additions to it: http://bioinformatics.ucsf.edu/bwtaylor/dvd/SC_copyright.html __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 12:31:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15115 for dvd-discuss-outgoing; Wed, 8 Mar 2000 12:31:44 -0500 Received: from mtiwmhc25.worldnet.att.net (mtiwmhc25.worldnet.att.net [204.127.131.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA15112 for ; Wed, 8 Mar 2000 12:31:43 -0500 Received: from alaptop.hotwired.com ([12.78.116.95]) by mtiwmhc25.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000308184415.EUX17170.mtiwmhc25.worldnet.att.net@alaptop.hotwired.com> for ; Wed, 8 Mar 2000 18:44:15 +0000 Message-Id: <4.3.0.20000308134014.01aede80@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 13:42:24 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <20000308095818.A13379@cty-alum.org> References: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I coauthored this article four years ago and got threatened with criminal prosecution over it: http://www.eff.org/pub/Publications/Declan_McCullagh/cwd.keys.to.the.kingdom.0796.article I also put the Censorware Search Engine up on time.com and got not just threats of a lawsuit, but an actual lawsuit from a censorware vendor over it. Censorware vendors don't need the DMCA, tho it may give them another legal theory, that's all. -Declan At 09:58 3/8/2000 -0800, Seth David Schoen wrote: >I'll be interested to see what happens. Since Bennett Haselton made friends >with a bunch of lawyers, he's gotten many fewer spurious threats of lawsuits. >But that was Before The DMCA. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 12:45:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16398 for dvd-discuss-outgoing; Wed, 8 Mar 2000 12:45:55 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA16395 for ; Wed, 8 Mar 2000 12:45:54 -0500 Received: (qmail 15627 invoked by uid 500); 9 Mar 2000 12:35:27 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 9 Mar 2000 12:35:27 -0000 Date: Thu, 9 Mar 2000 04:35:26 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Human rights case In-Reply-To: <38C7DE86.233DEA76@pmbs.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.wired.com/news/politics/0,1283,34808,00.html Reaction to the above article: On the premise of civil rights issue we may be in a battle we can't win. The MPAA has enough money to convince the public they are "right". People prefer not to be involved on a case that may involve them paying just a bit more for a DVD or restricting them to use DVD on Linux. The Linux population isn't significant enough to make an impact at this moment as I can tell. What I propose is we don't fight on the premise of the "civil rights" but on the premise of "human rights". This will allow us to bypass the case altogether and bring up a case we can leverage. This is regarding "freedom of speech". The right to "think" and to "share". DeCSS is a creation. Thus follow under the premise of "creativity". Back during the slavery period, a lot of slave owners prevent slaves from learning or from writing because they want to put them in suppression. Similiarly the MPAA wants to do the same with this lawsuit. My two cents. Kent From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 12:47:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16523 for dvd-discuss-outgoing; Wed, 8 Mar 2000 12:47:08 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16222; Wed, 8 Mar 2000 12:44:25 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id NAA23830; Wed, 8 Mar 2000 13:57:26 -0500 (EST) Message-Id: <4.2.2.20000308132507.00b6dbf0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 08 Mar 2000 13:57:22 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] EFF Questions -- the challenge Cc: dvd-announce@eon.law.harvard.edu In-Reply-To: <38BF9185.A00C8C7A@eff.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The EFF (and now Declan's article) have challenged the list to produce responses to some specific questions. Where are we on these? I've tried to add references I've seen on the list. In particular, if anyone's working on a topic offline, or wants to discuss by off-list email with others, please let us know. (It's easiest to find the messages again if you label as Tech Issue #X / Legal Issue #Y and change subjects when the topics change.) --Wendy >Robin Gross wrote: > > > > LEGAL ISSUES: > > > > 1. We need a memo on the issue of DVD as a computer program or data > > file. What was the legislative intent behind the DMCA exemptions for > > DVDs? Do they apply or was this only intended for "software"? one person looking off-list. > > 2. DVD region coding and possible legal ramifications. Does this > > scheme violate antitrust laws as a cartel organizing a restraint in > > trade? Does this scheme violate a European Directive regarding unfair > > trade? > > > > 3. Comprehensive Fair Use Analysis. We need a memo outlining the most > > important fair use cases (approx. 35) and discussing how they impact > > this case. > > > > 4. Comprehensive Copyright/First Amendment Analysis. We need a memo > > outlining the most relevant copyright cases that have involved First > > Amendment defenses and discussing how they impact this case. http://eon.law.harvard.edu/archive/dvd-discuss/msg01145.html > > 5. Reverse Engineering Analysis: We need a memo outlining the legal > > cases dealing with reverse engineering and how they apply to this case. Thread beginning at http://eon.law.harvard.edu/archive/dvd-discuss/msg01096.html Anyone want to see what a search on "reverse engineer! w/s copyright" turns up through jurisline (linked off http://eon.law.harvard.edu/openlaw/dvd/resources.html ) ? > > 6. Click wrap licenses. a) What is the case law supporting the > > requirement for a manifesting of assent to contract? b) Does case law > > support the creation of binding agreements through purchase only? c) > > what is the impact of "hacking" around a click-wrap on the requirement > > for assent to contract? one off-list response looks pretty thorough. > > 7. What is the burden of proof standard regarding the weight of the > > evidence needed to prove an initial misappropriation in a trade secret > > case? What is the burden of proof (weight) needed to prove > > misappropriation by a republisher? > > > > 8. What are case law examples involving the loss of trade secret status > > through inadvertence? possibly one off-list. > > 9. What cases have discussed the limitations imposed upon Congress > > regarding Copyright? How does the Constitution constrain what Congress > > can do in fixing the rules for copyright? http://eon.law.harvard.edu/archive/dvd-discuss/msg01145.html Bryan's document: http://bioinformatics.ucsf.edu/bwtaylor/dvd/copyright_limits.txt > > TECH ISSUES: > > > > 1. Region Coding. How does region coding prevent playback? What are > > the different ways to bypass this technological measure and how easy are > > they to accomplish? Are there DVDs that are coded to play in all > > regions? http://eon.law.harvard.edu/archive/dvd-discuss/msg01020.html http://eon.law.harvard.edu/archive/dvd-discuss/msg01022.html One response received off-list. > > 2. True or False: It is impossible to fast-forward past commercials or > > FBI warnings on DVDs? Sometimes true, but not always? http://eon.law.harvard.edu/archive/dvd-discuss/msg01015.html Folks with DVD players and commercial DVDs, please confirm. > > 3. What other operating systems are left unsupported by DVDs? http://eon.law.harvard.edu/archive/dvd-discuss/msg01014.html http://eon.law.harvard.edu/archive/dvd-discuss/msg01021.html > > 4. What are other concrete examples are there of occasions in which > > reverse engineering has been critical to achieving a technological break > > through in an industry? Are there examples of other attempts to prevent > > such activity and what was the result? Ongoing discussion on-list. Thread beginning at http://eon.law.harvard.edu/archive/dvd-discuss/msg01096.html >5. Top five myths about DeCSS. What are the top five greatest >misunderstandings about the DeCSS technology and why are they wrong? Anyone to compile? >6. I'm not sure this is even possible: Can we determine the number of >copies of DeCSS found on Web Sites around the world on the following >dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29? Please document >all findings. If you can't find the historical figures, can we find >current figures? http://eon.law.harvard.edu/archive/dvd-discuss/msg00996.html wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 12:53:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17977 for dvd-discuss-outgoing; Wed, 8 Mar 2000 12:53:51 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA17974 for ; Wed, 8 Mar 2000 12:53:50 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id OAA29067 for ; Wed, 8 Mar 2000 14:06:53 -0500 (EST) Message-Id: <4.2.2.20000308140343.00b69eb0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 08 Mar 2000 14:06:47 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] FWD from sparky: framing the argument Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky@suba.com writes: FRAME OF ARGUMENT The defendants are not guilty of trafficking in access control circumvention tech. Q: Why? A: They are not guilty because the tech in question is not to be construed as intended solely and obviously for the act of infringing copyright through access control circumvention; that is, it can be used in non-infringing uses. Q: How is this proved? A: This is basically to be proved by showing that the tech in question only circumvents access control on store bought media. This is in distinction to tech which may circumvent access control on streaming media, broadcast, or other forms of delivery where the copyrighted work is not sold fixed on media ("black boxes"). In the latter, any active access to the copyrighted work is strictly prohibited. Thus any tech which circumvents access control put in place to restrict active access to these formats of media is clearly and obviously against the law. However, with regard to store bought media, it has been determined that considerations other than the copyright holder's come into play once the work has been sold. These considerations are free speech and fair use considerations, which determine that there are uses to which works fixed in media may be put without the authority of the copyright holder. These uses are by definition possible with works fixed on media and sold. Though the wording of 1201 appears to make a flat prohibition to access control circumvention, in fact it is a mistake to interpret it thusly. There are many things, such as for example certain passages within the law, or the intent of the law's authors registered in official statements, which clearly indicate that 1201 is to be interpreted with full respect for the venerable history of fair use and free speech which has been developed in our courts over hundreds of years of federal court rulings. Therefore we are not to construe that the considerations of the preceeding paragraph do not apply in cases brought to court under 1201. As the tech in question does not have an obvious and clear use only for piracy, which is clear from: the nature of the tech, the nature of the works whose access control measures it circumvents, and the current state of free speech and fair use legislation, it is just that the defendants in this case be completely acquitted of any wrongdoing. wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 13:19:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23330 for dvd-discuss-outgoing; Wed, 8 Mar 2000 13:19:25 -0500 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA23327 for ; Wed, 8 Mar 2000 13:19:24 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA04092; Wed, 8 Mar 00 14:33:58 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id OAA14151 for ; Wed, 8 Mar 2000 14:32:28 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id OAA28374 for ; Wed, 8 Mar 2000 14:32:27 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id OAA04118; Wed, 8 Mar 2000 14:32:27 -0500 (EST) Date: Wed, 8 Mar 2000 14:32:27 -0500 (EST) Message-Id: <200003081932.OAA04118@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm going to de-lurk for a moment to testify that the connection between the threat of the DMCA, and exposing censorware blacklists, is not far-fetched at all. I'm a co-founder of Censorware Project, and the increasing legal risk in part from the DMCA was a significant factor causing me to stop doing such volunteer work. I submitted a DMCA comment to the Copyright Office on exactly that issue, see below (they rejected it for formatting reasons, sigh). I'm watching very carefully what happens to Bennett Haselton for distributing decoder of censorware blacklists. He's a better man than I am in terms of legal-risk-tolerance. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- Comment on Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works To The Librarian of Congress I am writing to you with regard to the adverse affect of the DMCA section 1201(a)(1) prohibition in making noninfringing uses of a class of works. Unlike many submissions which have argued in the large, I would like to devote mine to a specific, personal, example. I am a Senior Software Engineer who co-founded and devoted much volunteer analysis effort to an organization called Censorware Project (http://censorware.org). I do not write to you as a representative of this organization, though, and in fact my comment pertains to why that is the case. Briefly, censorware, more euphemistically called "Internet Filtering" programs, are in essence big blacklists of forbidden words or web sites. The purpose of these blacklists is for authorities to employ them in preventing other people from reading material forbidden by the blacklist. In some cases, the control is parent over child, which draws much approval, and in other cases, it is government over citizen, which is much less favored. But the specifics are not relevant to the program's purpose. Almost all censorware programs attempt to keep these blacklists secret, through the use of encryption of the words or sites on the blacklist. So decoding this encryption would arguably be a straightforward action to "circumvent a technological measure that effectively controls access to a work protected under this title", violating DMCA 1201(a)(1). Yet examining such blacklists has classic fair-use scholarly applications. Such landmark cases as "Mainstream Loudoun v. Bd of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (1998)" used analysis of censorware as part of the evidence submitted in the trial. I personally participated in the censorware analysis there. Such examination of censorware has also served broad public policy interests, deflating phony product claims and providing vital information for public debate on the topic. The barriers provided by encryption of the censorware blacklist are thus an "the implementation of technological protection measures that effectively control access to copyrighted works" which "is diminishing the ability of individuals to use copyrighted works in ways that are otherwise lawful". But I don't do this work anymore. A large reason is that the legal risks simply became more than I could tolerate. Around the time the DMCA was first being debated, I was advised by one lawyer with Censorware Project that we were facing odds of being ``sued on trumped up charges by a censorware company''. It's often said that the people working on these sorts of issues can turn to public-interest groups for legal defense. But as many an activist has ruefully discovered, there's just not that much celebrity to go around. I had once in fact formally contacted the Electronic Frontier Foundation, consulting with their then-prominent Staff Counsel, Mike Godwin. Unfortunately, during this period EFF was in the grip of a political campaign to socially promote the virtues of censorware. Staff Counsel Mike Godwin not only refused to give any legal backing, he then used information revealed to him against my interests. Ironically, I ended up in worse tactical position than if I had never sought such assistance. In the specific Rulemaking, I would ask that you exempt a "class of copyrighted works from the statutory prohibition against circumvention", along the lines of "lists intended to be used to forbid access to listed items" (i.e. blacklists). As a more general comment, the DMCA desperately needs a general fair-use exemption. The encryption research and reverse-engineering provisions are far too narrow, for example my particular situation is not covered by either of them. Please do all that you can to minimize the effects of the DMCA's harsh prohibitions. Sincerely, Seth Finkelstein From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 13:21:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23600 for dvd-discuss-outgoing; Wed, 8 Mar 2000 13:21:45 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23596 for ; Wed, 8 Mar 2000 13:21:43 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id OAA23202 for ; Wed, 8 Mar 2000 14:34:47 -0500 (EST) Date: Wed, 8 Mar 2000 14:34:47 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <4.3.0.20000308134014.01aede80@pop.webcom.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 8 Mar 2000, Declan McCullagh wrote: > I coauthored this article four years ago and got threatened with criminal > prosecution over it: > > http://www.eff.org/pub/Publications/Declan_McCullagh/cwd.keys.to.the.kingdom.0796.article > > I also put the Censorware Search Engine up on time.com and got not just > threats of a lawsuit, but an actual lawsuit from a censorware vendor over it. Care to post any of the legal detritus resuliting from such these lawsuits? The complaints might make interesting reading, as would any decision. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 13:29:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24926 for dvd-discuss-outgoing; Wed, 8 Mar 2000 13:29:11 -0500 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA24923 for ; Wed, 8 Mar 2000 13:29:10 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA07679; Wed, 8 Mar 00 14:43:44 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id OAA17515 for ; Wed, 8 Mar 2000 14:42:14 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id OAA02265 for ; Wed, 8 Mar 2000 14:42:13 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id OAA04215; Wed, 8 Mar 2000 14:42:13 -0500 (EST) Date: Wed, 8 Mar 2000 14:42:13 -0500 (EST) Message-Id: <200003081942.OAA04215@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Declan McCullagh > I also put the Censorware Search Engine up on time.com and got not just > threats of a lawsuit, but an actual lawsuit from a censorware vendor over it. You did? An actual lawsuit? Is the complaint on-line anywhere? I would be absolutely fascinated to read it. > Censorware vendors don't need the DMCA, tho it may give them another legal > theory, that's all. This underrates the far broader scope of the DMCA, particularly the way it works around traditional fair-use defenses in copyright law. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 14:07:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31003 for dvd-discuss-outgoing; Wed, 8 Mar 2000 14:07:21 -0500 Received: from MIT.EDU (SOUTH-STATION-ANNEX.MIT.EDU [18.72.1.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA31000 for ; Wed, 8 Mar 2000 14:07:19 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA19049; Wed, 8 Mar 00 15:20:21 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id PAA29437 for ; Wed, 8 Mar 2000 15:15:13 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id PAA15858 for ; Wed, 8 Mar 2000 15:15:12 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id PAA04428; Wed, 8 Mar 2000 15:15:12 -0500 (EST) Date: Wed, 8 Mar 2000 15:15:12 -0500 (EST) Message-Id: <200003082015.PAA04428@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Some legal threats are covered at: http://www.peacefire.org/censorware/CYBERsitter/ Of note: http://www.wired.com/news/politics/0,1283,901,00.html Cybersitter Goes after Teen by Rebecca Vesely Particularly good is: http://peacefire.org/archives/SOS.letters/bm.2.dm.8.15.96.txt "Your willful reverse engineering and subsequent publishing of copyrighted software code is a clear violation of US Copyright law." (the president of the company which makes CyberSitter) I don't know of any formal court documents which were filed regarding censorware lawsuits, or formal decisions, though I would be very interested to find them. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- (and co-founder (now retired) Censorware Project http://censorware.org) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 14:12:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31441 for dvd-discuss-outgoing; Wed, 8 Mar 2000 14:12:12 -0500 Received: from dial196.roadrunner.com (dial196.cybermesa.com [209.12.75.196]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31438 for ; Wed, 8 Mar 2000 14:12:09 -0500 Received: (from paul@localhost) by dial196.roadrunner.com (8.8.7/8.8.7) id NAA01331 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 13:28:14 -0700 Date: Wed, 8 Mar 2000 13:28:13 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF Questions -- the challenge Message-ID: <20000308132813.A1178@localhost> References: <38BF9185.A00C8C7A@eff.org> <4.2.2.20000308132507.00b6dbf0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000308132507.00b6dbf0@law.harvard.edu>; from wendy@seltzer.com on Wed, Mar 08, 2000 at 01:57:22PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 01:57:22PM -0500, Wendy Seltzer wrote: > The EFF (and now Declan's article) have challenged the list to produce > responses to some specific questions. Where are we on these? I've tried to > add references I've seen on the list. > > In particular, if anyone's working on a topic offline, or wants to > discuss by off-list email with others, please let us know. > (It's easiest to find the messages again if you label as Tech Issue #X / > Legal Issue #Y and change subjects when the topics change.) > > > 3. Comprehensive Fair Use Analysis. We need a memo outlining the most > > > important fair use cases (approx. 35) and discussing how they impact > > > this case. > > > > > > 4. Comprehensive Copyright/First Amendment Analysis. We need a memo > > > outlining the most relevant copyright cases that have involved First > > > Amendment defenses and discussing how they impact this case. > > http://eon.law.harvard.edu/archive/dvd-discuss/msg01145.html I'm banging away on these two right now. I'm working from the ink and paper literature. I don't have a clear line between the two, but currently things are heavy on #4, and lighter on #3. I'll come up for air later today. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 14:54:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09117 for dvd-discuss-outgoing; Wed, 8 Mar 2000 14:54:36 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA09114 for ; Wed, 8 Mar 2000 14:54:34 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id NAA02766 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 13:05:27 -0800 Date: Wed, 8 Mar 2000 13:05:26 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Message-ID: <20000308130526.F13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003082015.PAA04428@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200003082015.PAA04428@oobleck.mit.edu>; from sethf@mit.edu on Wed, Mar 08, 2000 at 03:15:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth Finkelstein writes: > Some legal threats are covered at: > > http://www.peacefire.org/censorware/CYBERsitter/ > > Of note: > > http://www.wired.com/news/politics/0,1283,901,00.html > Cybersitter Goes after Teen by Rebecca Vesely > > Particularly good is: > > http://peacefire.org/archives/SOS.letters/bm.2.dm.8.15.96.txt > "Your willful reverse engineering and subsequent publishing of copyrighted > software code is a clear violation of US Copyright law." > (the president of the company which makes CyberSitter) > > I don't know of any formal court documents which were filed > regarding censorware lawsuits, or formal decisions, though I would be > very interested to find them. Still no court documents, but this just came through on peacefire-technical: http://news.cnet.com/news/0-1005-200-1567022.html Bennett says: > I wonder if they are going to correct this part: > >>> > But when he posted a link to iGear's list recently, the company's lawyers > came bearing down, citing copyright infringement. > > The link was promptly removed. >>> > > That's not true. I-Gear moved the file on *their* server so that the link > would stop working. But we definitely did not cave in to any of their > legal threats. The CNet article specifically mentions the DMCA. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 15:42:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18502 for dvd-discuss-outgoing; Wed, 8 Mar 2000 15:42:15 -0500 Received: from hotmail.com (law2-f287.hotmail.com [216.32.180.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA18499 for ; Wed, 8 Mar 2000 15:42:13 -0500 Received: (qmail 63630 invoked by uid 0); 8 Mar 2000 21:54:46 -0000 Message-ID: <20000308215446.63629.qmail@hotmail.com> Received: from 205.147.249.174 by www.hotmail.com with HTTP; Wed, 08 Mar 2000 13:54:46 PST X-Originating-IP: [205.147.249.174] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Date: Wed, 08 Mar 2000 16:54:46 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am just jumping in to this discussion and come from a legal rather than a technical background. I am unsure what "site lists of censorware" are. However, assuming it is a "list" in the same sense that any database is a list, I make the following observations. 1. The DMCA Chapter 1200 only prohibits circumvention of measures that control access to copyrighted works. 2. Generally, there is no copyright protection in databases (straight lists such as a phonebook). 3. Therefore, anyone decrypting or otherwise circumventing measures designed to control access to these lists is not liable under the DMCA Chapter 1200. 4. The DMCA applies to DVD's because DVD's contain copyrighted material. 5. The converse is also true: the DMCA does not apply where the DVD contains only uncopyrighted material. > > - How about the blocked site lists of censorware? These are probably >under > > copyright, at least if human created and if they contain rules in >addition > > to just site addresses. They are commonly encrypted to control access by >the > > general public. Breaking the code has more than once revealed dubious > > practices on behalf of the manufacturer (blocking of sites critical >towards > > the product etc.) and so contributed to common good. > >When Bennett Haselton released a new set of censorware blacklist decryption >programs in the last two weeks, he specifically wondered whether he would >be sued under the DMCA. > >So far, he hasn't heard from any lawyers, but if he does, I'll let this >list >know about it. > >Client-side censorware is a losing proposition in itself, but client-side >censorware with secret blacklists is comparable to software DVD players >with >a secret algorithm. But potentially both could involve the DMCA. > >In the case of censorware, there is no "interoperability" issue at all; a >group like Peacefire is publishing the results of reverse-engineering >solely >for criticism purposes (which is to say ridicule purposes -- to harm public >opinion of censorware vendors and their products). > >I'll be interested to see what happens. Since Bennett Haselton made >friends >with a bunch of lawyers, he's gotten many fewer spurious threats of >lawsuits. >But that was Before The DMCA. > >-- >Seth David Schoen | And do not say, I will study when >I >Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you >will >down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot >2:5 ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 15:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21719 for dvd-discuss-outgoing; Wed, 8 Mar 2000 15:50:09 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA21715 for ; Wed, 8 Mar 2000 15:50:07 -0500 Received: (qmail 12037 invoked from network); 8 Mar 2000 21:59:05 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 8 Mar 2000 21:59:05 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id OAA31193; Wed, 8 Mar 2000 14:03:24 -0800 Date: Wed, 8 Mar 2000 14:03:24 -0800 Message-Id: <200003082203.OAA31193@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A Erwin wrote: >On Tue, 7 Mar 2000, Rares Marian wrote: > >> Wendy Seltzer wrote: >> >Good reverse engineering examples. Let's press ahead for more of these. >> > >> >At 10:32 AM 3/7/00 -0500, rst@ai.mit.edu wrote: >> >I imagine that Sony can now take another tack, saying that its BIOS is an >> >"access control device" protecting the copyrighted works on Playstation >> >games. What happens then? Is Connectix's Virtual Game Station in the same >> >boat as DeCSS? >> > >> >--Wendy >> >> No they can't. The BIOS is the ignition not the key. >> >> I need my PC's BIOS to boot my PC regardless if I have rights to the Linux partition (meaning I have a login) or not. And even if the BIOS had a lock on it, it wouldn't matter. It would be a lock on a BIOS. Not simply a BIOS. BIOS mean Basic Input Output System is pretty general purpose. Just like the write protect tab on 5.25" floppy can be there or not. It's a tab on a floppy. separate functions. Separate objects. Just the same casing. >> >> Rares > >Yes, but comparing the BIOS of an IBM PC to a playstation's BIOS is >somehat difficult. Essentially, the IBM PC BIOS (the one reverse >engineered by Compaq and possibly others) was very simple. > >Conversely, the chipset that performs similar functions on a Macintosh >contains the Macintosh Toolbox, which contains code for drawing pointers, >menus, etc. Reverse engineering the Macintosh ROM (or BIOS, if you >prefer) would have been a much more difficult process. > >If you want to analyse the Playstation BIOS for the sake of legal >argument, you have to look at what features the Playstation BIOS provides, >not what your PC's BIOS provides. > >Jeremy > >P.S. Isn't Award planning to incorporate advertising on it's BIOSes, to >be possibbly updated via the internet? I'd expect that should their plans >come to fruition, consumers' attempts to alter/disable the advertising >will result in a number of interesting legal opinions. > What does this have to do with access control? Regardless whether it's it has ads or it runs hardware sprites, it's not an access control device. That's what she was asking. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 15:59:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23686 for dvd-discuss-outgoing; Wed, 8 Mar 2000 15:59:46 -0500 Received: from hotmail.com (law2-f82.hotmail.com [216.32.181.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA23664 for ; Wed, 8 Mar 2000 15:59:44 -0500 Received: (qmail 94456 invoked by uid 0); 8 Mar 2000 22:12:17 -0000 Message-ID: <20000308221217.94455.qmail@hotmail.com> Received: from 205.147.249.174 by www.hotmail.com with HTTP; Wed, 08 Mar 2000 14:12:17 PST X-Originating-IP: [205.147.249.174] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Date: Wed, 08 Mar 2000 17:12:17 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >I'm going to try to take a crack at an essay on the Constitutional >limits to the Copyright Power, which is one of the items Robin Gross >asked for. I took the liberty of also talking about the commerce power. > One immediate observation on the essay. I think you overstate the requirement that something "substantially affect" interstate commerce. Wickard involved a lone farmer who wished to grow his own wheat, for his own use, on his own farm, where the government had limited the amount of wheat to be produced. The Supreme Court held that the lone wheat farmer's production of wheat for his own consumption substantially affected interstate. The Court's rationale was that if EVERYONE grew wheat for their own consumption the aggregate effect of removing all this wheat from the market would substantially affect interstate commerce. Thus, when examining whether something "substantially affects" interstate commerce, one must look at the affect in the aggregate. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 16:12:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24992 for dvd-discuss-outgoing; Wed, 8 Mar 2000 16:12:01 -0500 Received: from labdcexsc01.omm.com (207-105-246-20.omm.com [207.105.246.20]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24989 for ; Wed, 8 Mar 2000 16:12:00 -0500 Received: by LABDCEXSC01 with Internet Mail Service (5.5.2448.0) id ; Wed, 8 Mar 2000 14:20:15 -0800 Message-ID: From: "Barron, Austin" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] ACCESS as USE - long! sorry! Date: Wed, 8 Mar 2000 14:26:28 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain; charset="windows-1252" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu just a quick point, but likening cable t DVDs is apples and highlighters. cable is a different medium, where access control is the only way to protect a data stream that can be split. it's a live, continuing service that isn't embodied in a tangible medium -- the access control law here is really just a federal theft of services law. access control protection for copyrighted items -- kickable, embodied in a tangible medium type stuff -- puts an extra element of control in for the author. normally, you write a book, and once you sell that copy of the book people can do with it what they will. the author has control over distribution by his or her choice to sell the copy of the book. Admittedly, technology now would make it child's play for the cable companies to have the same type of control, but nobody's ever thought that you could put a statutory lock on individual physical sold copies of a work embodied in a tangible medium. |New yes, but I think Federal "access control"-type laws go back to |the 1984 Cable Communications Policy Act. 47 USC 553 says, | | * (a) Unauthorized interception or receipt or assistance in | intercepting or receiving service; ''assist in intercepting or | receiving'' defined | + (1) No person shall intercept or receive or assist in | intercepting or receiving any communications |service offered | over a cable system, unless specifically |authorized to do so | by a cable operator or as may otherwise be specifically | authorized by law. | + (2) For the purpose of this section, the term ''assist in | intercepting or receiving'' shall include the |manufacture or | distribution of equipment intended by the manufacturer or | distributor (as the case may be) for unauthorized reception | of any communications service offered over a cable |system in | violation of subparagraph (1). From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 16:21:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28311 for dvd-discuss-outgoing; Wed, 8 Mar 2000 16:21:09 -0500 Received: from hotmail.com (law2-f17.hotmail.com [216.32.181.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA28308 for ; Wed, 8 Mar 2000 16:21:05 -0500 Received: (qmail 89570 invoked by uid 0); 8 Mar 2000 22:33:38 -0000 Message-ID: <20000308223338.89569.qmail@hotmail.com> Received: from 205.147.249.174 by www.hotmail.com with HTTP; Wed, 08 Mar 2000 14:33:37 PST X-Originating-IP: [205.147.249.174] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FWD from sparky: framing the argument Date: Wed, 08 Mar 2000 17:33:37 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >sparky@suba.com writes: > >FRAME OF ARGUMENT > >The defendants are not guilty of trafficking in access control >circumvention tech. > >Q: Why? >A: They are not guilty because the tech in question is not to be construed >as intended solely and obviously for the act of infringing copyright >through access control circumvention; that is, it can be used in >non-infringing uses. > >Q: How is this proved? >A: This is basically to be proved by showing that the tech in question only >circumvents access control on store bought media. This is in distinction to >tech which may circumvent access control on streaming media, broadcast, or >other forms of delivery where the copyrighted work is not sold fixed on >media ("black boxes"). > >In the latter, any active access to the copyrighted work is strictly >prohibited. Thus any tech which circumvents access control put in place to >restrict active access to these formats of media is clearly and obviously >against the law. > >However, with regard to store bought media, it has been determined that >considerations other than the copyright holder's come into play once the >work has been sold. These considerations are free speech and fair use >considerations, which determine that there are uses to which works fixed in >media may be put without the authority of the copyright holder. These uses >are by definition possible with works fixed on media and sold. > >Though the wording of 1201 appears to make a flat prohibition to access >control circumvention, in fact it is a mistake to interpret it thusly. >There are many things, such as for example certain passages within the law, >or the intent of the law's authors registered in official statements, which >clearly indicate that 1201 is to be interpreted with full respect for the >venerable history of fair use and free speech which has been developed in >our courts over hundreds of years of federal court rulings. Therefore we >are not to construe that the considerations of the preceeding paragraph do >not apply in cases brought to court under 1201. > >As the tech in question does not have an obvious and clear use only for >piracy, which is clear from: the nature of the tech, the nature of the >works whose access control measures it circumvents, and the current state >of free speech and fair use legislation, it is just that the defendants in >this case be completely acquitted of any wrongdoing. >wendy@seltzer.com || wseltzer@kramerlevin.com >http://cyber.law.harvard.edu/seltzer.html > This argument ignores the plain language of the act. Section 1200 et. seq. impacts fair use not at all. Fair use allows some uses of a COPYRIGHTED WORK. One could argue that circumventing access control (what 1200 prohibits) can never be a fair use because it is not a "use" at all. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 16:34:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA31676 for dvd-discuss-outgoing; Wed, 8 Mar 2000 16:34:12 -0500 Received: from hotmail.com (law2-f164.hotmail.com [216.32.181.164]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA31673 for ; Wed, 8 Mar 2000 16:34:11 -0500 Received: (qmail 31036 invoked by uid 0); 8 Mar 2000 22:46:44 -0000 Message-ID: <20000308224644.31035.qmail@hotmail.com> Received: from 205.147.249.174 by www.hotmail.com with HTTP; Wed, 08 Mar 2000 14:46:44 PST X-Originating-IP: [205.147.249.174] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Wed, 08 Mar 2000 17:46:44 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu See my previous post on this subject. However, you prove my point: >Briefly, censorware, more euphemistically called >"Internet Filtering" programs, are in essence big blacklists of >forbidden words or web sites. Again this is just a list. Has any court ruled that these lists are protected by copyright? If not, no fear of DMCA. >Almost all censorware programs attempt to keep these blacklists >secret, through the use of encryption of the words or sites on the >blacklist. So decoding this encryption would arguably be a >straightforward action to "circumvent a technological measure that >effectively controls access to a work protected under this title", >violating DMCA 1201(a)(1). However, "a work protected under this title" refers to a work that is protected by copyright law. Therefore, there is no prohibition on accessing a work, whether encrypted or not, if the work is not protected by copyright law. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02761 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:06:47 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA02758 for ; Wed, 8 Mar 2000 17:06:45 -0500 Received: (qmail 2105 invoked by uid 60001); 8 Mar 2000 23:19:49 -0000 Message-ID: <20000308231949.2104.qmail@web505.mail.yahoo.com> Received: from [24.28.154.65] by web505.mail.yahoo.com; Wed, 08 Mar 2000 15:19:49 PST Date: Wed, 8 Mar 2000 15:19:49 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > One immediate observation on the essay. I think you overstate the > requirement that something "substantially affect" interstate > commerce. The words "substantially affect" are taken from US v Lopez, where they were very carefully considered in the majority opinion by Rehnquist. The majority decided the standard was "substantially affects" as opposed to merely "effects" and reviewed the totality of 20th century commerce clause litigation (including Wickard). The Court noted that in Wickard the law was narrowly tailored to stabilize wheat prices by putting quotas on wheat prodcution. They also noted that the case had been made that a "substantial" factor in the price of wheat was stockpiling of home-grown wheat. Renquist, writing for the majority, called Wickard "perhaps the most far reaching example of Commerce Clause authority". This language would indicate that Wickard is at the outer limits of the Commerce Clause. > The Court's rationale was that if EVERYONE grew wheat for their own > consumption the aggregate effect of removing all this wheat from the > market would substantially affect interstate commerce. Thus, when > examining whether something "substantially affects" interstate > commerce, one must look at the affect in the aggregate. This is true, but the same is true when evaluating the economic impact when considering "fair use", except that this doesn't have to be "substantial". The question simply put is whether Congress can use the commerce power to ban activities that would otherwise be "fair use". Fair use might be found even if there are 'commercially significant' impacts, but I'm arguing that fair use bounds these safely below the "substantial" range. In a nutshell, for something to be fair use, it's economic impact on the author must be less than "substantial". Since the author has a monopoly, this is ALL the impact. Therefore the total impact is not "substantial". __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:16:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04403 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:16:20 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA04400 for ; Wed, 8 Mar 2000 17:16:18 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA02980 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 15:27:11 -0800 Date: Wed, 8 Mar 2000 15:27:11 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000308152711.M13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000308224644.31035.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000308224644.31035.qmail@hotmail.com>; from jadaub@hotmail.com on Wed, Mar 08, 2000 at 05:46:44PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > See my previous post on this subject. However, you prove my point: > > >Briefly, censorware, more euphemistically called > >"Internet Filtering" programs, are in essence big blacklists of > >forbidden words or web sites. > > Again this is just a list. Has any court ruled that these lists are > protected by copyright? If not, no fear of DMCA. These lists _are_ a result of creative effort, though, unlike some databases like phone books which may not be. These databases, in some cases, represent summaries of the results of having humans look at a lot of web pages and make some kind of judgment about their contents. Interestingly, I think some censorware vendors say that their blacklists are copyrighted creative works, while others just say that they are trade secrets. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:40:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09053 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:40:34 -0500 Received: from MIT.EDU (SOUTH-STATION-ANNEX.MIT.EDU [18.72.1.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA09050 for ; Wed, 8 Mar 2000 17:40:34 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA01939; Wed, 8 Mar 00 18:53:36 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id SAA00951 for ; Wed, 8 Mar 2000 18:53:38 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id SAA27331 for ; Wed, 8 Mar 2000 18:53:37 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id SAA05313; Wed, 8 Mar 2000 18:53:37 -0500 (EST) Date: Wed, 8 Mar 2000 18:53:37 -0500 (EST) Message-Id: <200003082353.SAA05313@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > "Joshua Daub" > See my previous post on this subject. However, you prove my point: > ... > Again this is just a list. Has any court ruled that these lists are > protected by copyright? If not, no fear of DMCA. While I'm not a lawyer, and never pretend to be one, I was *ahem* quite personally interested in this topic. I believe the following link in your argument is less than absolutely solid: > 2. Generally, there is no copyright protection in databases (straight lists > such as a phonebook). This is an assertion I've heard a few times, and certainly it's what defense counsel would argue. However, I'm worried that there's is strong counter-argument that censorware blacklists *are* copyrighted as "compilation copyright". That they are not pure databases within the above meaning, but rather contain "selection, arrangement, and coordination" that so qualify them for copyright protection. http://www.lawsch.uga.edu/~jipl/vol2/meade.html EX-POST FEIST: APPLICATIONS OF A LANDMARK COPYRIGHT DECISION Copyright law will not protect every selection, coordination, or arrangement. "[T]o merit protection, the facts must be selected, coordinated, or arranged `in such a way' as to render the work as a whole original."(122) Feist thus mandates a case by case analysis of creativity. Although the study may be furthered by case analogies, each situation should be viewed on its own merit.(123) The Feist decision did not set out a test by which to judge creativity, however. The Court used phrases such as "commonplace," "practically inevitable," and "garden-variety" to establish negative guidelines.(124) A work that fails to meet these minimal standards does not merit protection. In Kregos v. Associated Press,(125) the Second Circuit expanded the Feist directive; if a work's creativity surpasses these minimal guidelines, it merits copyright protection.(126) Some courts have applied these negative phrases by determining whether these terms could describe the works at issue.(127) Dissatisfied with this criteria, courts developed other standards for determining whether the minimal creativity standard has been met, including industry standards, triviality and functionality. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:42:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09320 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:42:33 -0500 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA09317 for ; Wed, 8 Mar 2000 17:42:33 -0500 Received: from alaptop.hotwired.com ([12.78.126.228]) by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000308235535.JWOU22178.mtiwmhc21.worldnet.att.net@alaptop.hotwired.com> for ; Wed, 8 Mar 2000 23:55:35 +0000 Message-Id: <4.3.0.20000308185234.0214c360@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 18:53:45 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000308224644.31035.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua, you sound very sure of yourself. Perhaps you'd like to be a test case? Feel free to grab the list mentioned at (http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it online, notify the company about what you've done, and let us know what happens. :) -Declan At 17:46 3/8/2000 -0500, Joshua Daub wrote: Again this is just a list. Has any court ruled that these lists are protected by copyright? If not, no fear of DMCA. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:47:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10836 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:47:21 -0500 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10804 for ; Wed, 8 Mar 2000 17:47:19 -0500 Received: from alaptop.hotwired.com ([12.78.126.228]) by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000309000022.JZEP22178.mtiwmhc21.worldnet.att.net@alaptop.hotwired.com> for ; Thu, 9 Mar 2000 00:00:22 +0000 Message-Id: <4.3.0.20000308185446.0214cf00@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 18:58:31 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <200003081942.OAA04215@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 14:42 3/8/2000 -0500, Seth Finkelstein wrote: > > Censorware vendors don't need the DMCA, tho it may give them another legal > > theory, that's all. > > This underrates the far broader scope of the DMCA, particularly >the way it works around traditional fair-use defenses in copyright law. Okay, I should have said it *will* give them another legal theory. You may well be correct if you're talking about whether a 16-year old censorware-hacker-defendant will be found guilty at the end of the hearings, discovery, and trial -- the DMCA boosts that probability substantially. But censorware vendors are by and large not especially pleasant companies, and they have plenty of ways to screw with someone under existing non-DMCA law, just for the SLAPP value. Maybe I'm biased. I say this as a writer who's been at the receiving end of this twice in pre-DMCA times. -Declan From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 17:53:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13731 for dvd-discuss-outgoing; Wed, 8 Mar 2000 17:53:02 -0500 Received: from localhost.localdomain (root@bur-jud-118-039.rh.uchicago.edu [128.135.118.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13728 for ; Wed, 8 Mar 2000 17:53:02 -0500 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id SAA01181 for ; Wed, 8 Mar 2000 18:06:08 -0600 Date: Wed, 8 Mar 2000 18:06:06 -0600 (CST) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <4.3.0.20000308185234.0214c360@pop.webcom.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Wed, 8 Mar 2000, Declan McCullagh wrote: > Joshua, you sound very sure of yourself. Perhaps you'd like to be a test > case? Feel free to grab the list mentioned at > (http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it > online, notify the company about what you've done, and let us know what > happens. :) > > -Declan Well, I'm not sure if Declan was serious about this, but I would be. If Joshua doesn't want to take the risk you are suggesting (or even if he does), I would be willing to post this list and notify the various companies involved. However, aren't these lists currently kept (online) at peacefire.org? I hate that this is neccesary, but I'm willing to stand up for our rights, even in the face of the legal system. sam th sytobinh@uchicago.edu -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE4xurwt+kM0Mq9M/wRAk/sAJ0Yl5mY/xi+j8d1LcnwykWuPQ4iBQCgro05 ET8L2CDGRWF3rS1m5hqZHco= =9pAS -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 18:22:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18581 for dvd-discuss-outgoing; Wed, 8 Mar 2000 18:22:43 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA18578 for ; Wed, 8 Mar 2000 18:22:43 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id TAA15111 for ; Wed, 8 Mar 2000 19:35:47 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA12511; Wed, 8 Mar 2000 19:35:45 -0500 (EST) Date: Wed, 8 Mar 2000 19:35:45 -0500 (EST) Message-Id: <200003090035.TAA12511@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <200003082353.SAA05313@oobleck.mit.edu> References: <200003082353.SAA05313@oobleck.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth Finkelstein writes: > This is an assertion I've heard a few times, and certainly it's > what defense counsel would argue. However, I'm worried that there's is > strong counter-argument that censorware blacklists *are* copyrighted > as "compilation copyright". That they are not pure databases within > the above meaning, but rather contain "selection, arrangement, and > coordination" that so qualify them for copyright protection. Wouldn't this require the plaintiffs to demonstrate that the arrangement has some real significance? Speaking just as an engineer, I doubt it makes any difference to the program whether whitehouse.com comes before or after playboy.com in the block list (unless the program relies on the list being sorted --- and I believe that mere alphabetization flunks the test for protectable "selection, arrangement and coordination"). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 18:43:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA21064 for dvd-discuss-outgoing; Wed, 8 Mar 2000 18:43:49 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA21061 for ; Wed, 8 Mar 2000 18:43:48 -0500 Received: from 216-164-137-220.s474.tnt4.lnhva.md.dialup.rcn.com ([216.164.137.220]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12SrFf-0004Ba-00 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 19:56:32 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200003082203.OAA31193@ns1.filetron.com> References: <200003082203.OAA31193@ns1.filetron.com> Date: Wed, 8 Mar 2000 19:56:02 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Jeremy A Erwin wrote: > > > > >P.S. Isn't Award planning to incorporate advertising on it's BIOSes, to > >be possibbly updated via the internet? I'd expect that should their plans > >come to fruition, consumers' attempts to alter/disable the advertising > >will result in a number of interesting legal opinions. > > > >What does this have to do with access control? Regardless whether >it's it has ads or it runs hardware sprites, it's not an access >control device. Sony vs Connectix uses BIOS to mean "firmware" and "operating system." It's a pretty loose definition. Given that piracy is a everpresent concern-- witness Sega v Accolade-- cryptography and access control are a reasonable addition to the BIOS. As for the postscriptum, I might point out that any BIOS based advertising program would maximize revenues if it changed ads with some frequency. Distributing ads via the Internet comes to mind. But Virus writers have been known to target the BIOS as well. To increase security, the writers of such an "ad displaying" bios might wish to incorporate authentication of some sort-- access control. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 18:55:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA21981 for dvd-discuss-outgoing; Wed, 8 Mar 2000 18:55:30 -0500 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA21963 for ; Wed, 8 Mar 2000 18:55:29 -0500 Received: from alaptop.hotwired.com ([12.78.126.228]) by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000309010825.LFGC22178.mtiwmhc21.worldnet.att.net@alaptop.hotwired.com> for ; Thu, 9 Mar 2000 01:08:25 +0000 Message-Id: <4.3.0.20000308200523.0219fbe0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 20:06:35 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: References: <4.3.0.20000308185234.0214c360@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well, if you do it, I'll write about the following fireworks. But in good conscience, I'd have to advise you to consult a lawyer first. -Declan At 18:06 3/8/2000 -0600, sam th wrote: > > Joshua, you sound very sure of yourself. Perhaps you'd like to be a test > > case? Feel free to grab the list mentioned at > > (http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it > > online, notify the company about what you've done, and let us know what > > happens. :) > >Well, I'm not sure if Declan was serious about this, but I would be. If >Joshua doesn't want to take the risk you are suggesting (or even if he >does), I would be willing to post this list and notify the various >companies involved. However, aren't these lists currently kept (online) >at peacefire.org? >I hate that this is neccesary, but I'm willing to stand up for our rights, >even in the face of the legal system. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 18:58:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22744 for dvd-discuss-outgoing; Wed, 8 Mar 2000 18:58:16 -0500 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA22741 for ; Wed, 8 Mar 2000 18:58:15 -0500 Received: from alaptop.hotwired.com ([12.78.126.228]) by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000309011058.LGKI22178.mtiwmhc21.worldnet.att.net@alaptop.hotwired.com> for ; Thu, 9 Mar 2000 01:10:58 +0000 Message-Id: <4.3.0.20000308200846.0207c300@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 08 Mar 2000 20:09:08 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: References: <4.3.0.20000308185234.0214c360@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 18:06 3/8/2000 -0600, sam th wrote: >companies involved. However, aren't these lists currently kept (online) >at peacefire.org? I don't believe so, for precisely the reasons we're discussing here. -Declan From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 19:04:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23475 for dvd-discuss-outgoing; Wed, 8 Mar 2000 19:04:14 -0500 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA23472 for ; Wed, 8 Mar 2000 19:04:14 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA14905; Wed, 8 Mar 00 20:18:48 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id UAA13173 for ; Wed, 8 Mar 2000 20:17:17 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id UAA11299 for ; Wed, 8 Mar 2000 20:17:17 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id UAA05609; Wed, 8 Mar 2000 20:17:17 -0500 (EST) Date: Wed, 8 Mar 2000 20:17:17 -0500 (EST) Message-Id: <200003090117.UAA05609@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >> Seth Finkelstein >> This underrates the far broader scope of the DMCA, particularly >> the way it works around traditional fair-use defenses in copyright law. > Declan McCullagh > Okay, I should have said it *will* give them another legal theory. > > You may well be correct if you're talking about whether a 16-year old > censorware-hacker-defendant will be found guilty at the end of the > hearings, discovery, and trial -- the DMCA boosts that probability > substantially. I'm egocentrically much more concerned with whether 35-year old civil-libertarian software-engineer-defendants will lose their life savings fighting various causes of actions and civil damages. > But censorware vendors are by and large not especially > pleasant companies, and they have plenty of ways to screw with someone > under existing non-DMCA law, just for the SLAPP value. Completely agreed. But this does not contradict that DMCA is a far more powerful weapon that they have had before. > Maybe I'm biased. I say this as a writer who's been at the receiving end of > this twice in pre-DMCA times. Oh, I'm definitely biased. I write this as a programmer who didn't want to be on the receiving end of it even once. And who wasn't happy to see a certain writer putting a censorware-opposition organization at greater legal risk, rumor has it because said writer was retaliating for not being given insider information from said organization. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- (and co-founder (now retired) Censorware Project http://censorware.org) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 19:08:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23792 for dvd-discuss-outgoing; Wed, 8 Mar 2000 19:08:29 -0500 Received: from dial121.roadrunner.com (dial121.cybermesa.com [209.12.75.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA23727 for ; Wed, 8 Mar 2000 19:08:19 -0500 Received: (from paul@localhost) by dial121.roadrunner.com (8.8.7/8.8.7) id SAA02094 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 18:24:36 -0700 Date: Wed, 8 Mar 2000 18:24:35 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Legal Issue #4, partly #3: partial Message-ID: <20000308182434.A2078@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Printed references useful to other people who want to dig into law #3, and #4. Very "legal": "Smolla and Nimmer on Freedom of Speech" Smolla, Rodney A., West Pub., (1999). ISBN 0-8366-1069-5 LCCN KF4772.N54 "Cases and Materials on Copyright" Nimmer, Marcus, Myers, Nimmer; Matthew Bender & Co. (1999). ISBN 0-314-83541-5 LCCN KF2993.N54 You'll need an academic or research library to get a copy of Smolla, but inter-library loan works too if all you have access to is a public library. In my opinion, interlibrary loan is exactly the sort of thing threatened by 1201. Use it or lose it. Less "legal": "Copyright's Highway," Paul Goldstein, Hill and Wang, (1994). ISBN 0-8090-5381-0 LCCN KF2994.G654 On-line material: http://www.findlaw.com/ http://www.law.cornell.edu/ I make a summary of Smolla on Intellectual Property, with commentary and a few reference to one other work. I think this is useful because it allows a direct comparision of what has been discussed on this list with the standard legal view on copyright and the First Amendment. This is very much an educational experience for me. Structuring legal documents is sufficiently different from the technical writing that I can only characterize this as a learning sketch. If the remaining material in Smolla is an indication, I'm about 1/3 done summarizing and commenting. Not counting the fact that someone will tell me a better structure, and I'll start over. This is still weak on (a)(2) and (b). I know. ------------------------------------------ Smolla begins by noting that there is tension between the First Amendment and the copyright clause. ref: Jerome Frank, Law and the Modern Mind _30_ (1949). "logic-tight compartments" describes people who believe in simultaneous validity of copyright and freespeech absolutism. Position the First Amend. absolutist is, "the First Amend. says, 'no law,' which does not require speech to be original." Some reconciliation between these two views is necessary. ref: Edmond Cahn, Justice Black and First Amend. 'Absolutes': A Public Interview, 37 NYU L. Rev., 549, 553, 559 (1962). Beauharnais v. Illinois, 343 U.S. 250, 275, 72 S. Ct. 725, 96, L. Ed. 919 (1952) (Black, J., dissenting). One interpretation of this inconsistency is to view copyright as a built-in exception to the First: "exclusive right" to an author's "writings". ref: Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc. 600 F.2d 1184, 1187, 5 Media L. Rep. 1904 (5th Cir. 1979). The difficulty with this view-point is that the first is an amendment, and is consequently an explicit modification of the Constitution. Because the first amend. was ratified after the copyright clause, one should not view the Copyclause as unmodified by the First. It does not carve out an exclusive domain free from balancing with the First. Congress may not ignore amendments when exercising authority in original body of the Constitution. ref: Reid v. Covert, 354 U.S. 1, 77, S. Ct. 1222, 1, L. Ed. 2d 1148 (1957). (opinion by Justice Black for the Court). "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution." Paul Fenimore's commentary on Smolla's writing: Access control, whether it is applied to a broad-cast, cable transmission or to stored data, is intended to prevent the comprehension of the transmitted signal or stored data, rendering a person effectively unable to read or meaningfully view. In the context of published expressive material, reading is a First Amendement issue, Griswold v. Connecticut (1965) and references therein. Ref: Griswold v. Connecticut 381 U.S. 479, 482 (1965). "The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109 , 112 ; Baggett v. Bullitt, 377 U.S. 360, 369. Without [p*483] those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases." The 17 USC 1201 is restricted to addressing the rights of a copyholder, but the First is implicated for reasons in the previous paragraph. 17 USC 1201(a)(1)(A): No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. Until the legislative tying of "access control" to the "exclusive rights" of a copyholder, the right to read after exercise of right of first publication and first-sale never(?) arose in the context of copyright litigation. Previous "access control"-like legislation always(?) concerned delivery of a service, such as cable TV: 47 USC 553, 605. In contrast, 17 USC 1201 is concerned with all copyrighted work, which are neither a sub-set nor a super-set of transmitted material. Possible earlier legislative history is telegraph communications, although there the issues would be privacy and mis-appropriation, not theft of service. Remaining issues: 1201(a)(1) is not yet operational. The New York law-suit is a trafficking case, not a circumvention case. Clarify right to read in two different contexts: first-sale vs. first publication. Clarify absense of right to read in context of mis-appropriation, trade-secret law, press and national security, secrecy agreements and national security. Verify (how does one do this, there isn't a null-result index in the field of law is there?) that there are no previous right-to- read cases in the context of copyright. In particular, is Universal Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 7 Media L. Rep. 2065 (9th Circ. 1981), rev'd on other grounds, 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). a limitation on the right to read. Historical examples of reading controls as distinct from prior or previous restraint on publication. Cf. Catholic Church's index in the 16th and 17th centuries. Copernicus, Galileo. Emphasize that censorship can act anywhere along the chain writing, publishing, reading. Examine more distantly-related cases on freedom of though, Tinker.; Board of Ed. v. Pico 457 U.S. 853, 871, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). "Our Constitution does not permit the official suppression of _ideas_." An important quote from Smolla: "If the Copright Clause does not render the First Amendment inoperative, why does not the contrary conclusion follow?" The first Congress enacted the first Copyright law on May 31, 1790, after the First Amendment was approved in 1789, and before it became operational in 1791. Statutory copyright first modified April 29, 1802. This issue is indirectly addressed in Burrow-Giles and Alfred Bell & Co., although in neither case did the Supreme Court consider the First Amendment as a means to invalidating the copyright clause. ref: Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, 4 S. Ct. 279, 28 L. Ed. 349 (1884). "The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive." Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). Smolla: "If the juriprudential approach to freedom of speech advanced in this treatise is to be applied in the copyright sphere, it is necessary to draw a line between that speech which may be prohibited under the copyright law, and that speech which, despite its copyright status, may not be abridged under the command of the First Amendment." Smolla warns that hidden assumptions are a common stumbling block to a careful analysis of interplay between First and copyclause in determining legitimacy of statutory copyright. Paul Fenimore's comment: Smolla does not address the issue of access control, or the activities complementary to writing and speaking --- reading and listening. These issues are addressed in Griswold v. Connecticut (1965), and failure to distinguish transmission from receipt of information may be one of the "tacit assumptions" that Smolla is suggesting are a big problem. Smolla examines the purpose of Copyclause and First. "Securing" to "promote" implies that copyright is a necessary "stimulus" to achieve "full realization" of "creative activities." ref: Mazer v. Stein 347 U.S. 201, 219, 74 S. Ct. 460, 98, L. Ed. 360 (1954). N.B. The economic rationale for copyright has been challenged by Supreme Court Justice Stephen Breyer: The Uneasy Case for Copyright: A Study in Books, Photocopies, and Computer Programs", 84 Harv. L. Rev. 281 (1970). Rebuttal by Barry W. Tyerman: The Economic Rationale For Copyright Protection For Published Books: A Reply to Professor Breyer, 18 UCLA L. Rev. 110 (1971). Reply by Breyer: Copyright: A Rejoinder, 20 UCLA L. Rev. 75 (1972). Paul Fenimore also notes: Paul Goldstein, "Copyright's Highway: ..." (1994) p. 22-26. "what if it could be shown that copyright is in fact _not_ needed as an incentive? ... Breyer attacked the natural rights rationale for copyright, so often invoked by copyright optimists. ... 'few workers receive salaries that approach the total value of what they produce.' ... [ paraphrase: this is not inherently immoral ] ... [ paraphrase: usually one is not compensated solely for sweat of the brow ] ..." Goldstein states that sixty of seventy pages of Harv. L. Rev. article are devoted to economic data. Breyer is reported as proposing "fighting edition" priced even lower than pirates, and lead-time of copyholder in process of publishing as copyholder advantages. Goldstein reports Tyerman as characterizing "fighting editions" as water swirling down the drain, dragging publisher into insolvency: high profit titles would be the most attractive to pirates. Further, issue is probably not _consumer_ price senitivity, but _distributor_ price sensitivity. Goldstein reports that Breyer's reply contains the following important quote, "The important debate, as Mr. Tyerman surely recognizes, is not whether copyright should be abolished, but whether, and how, copyright's strictures should be modified." [ p. 25, bottom, Goldstein ] Paul Fenimore comments: The Breyer debate only started to acknowledge the difference between the interests of authors and publishers. This is highly pertinent to 1201(a)(2) and (b) because control over distribution is a means to high profit for publishers. The effect on authors is indirect, and profitability for authors is dependent on market structure in the publishing business. As technology advances, cost of publication diminishes, making arguments about solvency of _publisher_ less pertinent. Pre-Gutenberg labor costs of duplicating books were drastically lowered by coupling medaeval invention of movable type with block-cut press. Electronic type-setting is one of many examples of lowered cost of publishing, as distinct from cost of authoring. Further, electronic publication drastically reduces size of captial investment needed to publish. Complicating issue is that many authors transfer copyright to publisher as pre-requisite to publication. Widely-needed computer programs can be produced without intervention of publisher per se, e.g. gcc compiler, emacs editor/office bloatware/, linux kernel, many other examples. Economic motivation for natural people in this context is often not directly profit, rather utility. Corporate persons all engage in this trade for profit, but business model is "service", not "manufacturing". Note that this does not directly address issue of whether _copyright_ is needed to promote progress, it is more closely related to questions of profit and business models favored by statutory copyright. One is dependant on the other, but they are not identical. Copyright is not the only conceivable means to profit. Note law professor and former professional programmer Eben Moglen's comments on the issue of expression and expressive material as an emergent property of the human mind. Moglen holds that transaction "costs" between people limit the emergence of expressive material. This is a starkly different view from copyright as incentive: The key distinction made in the standard legal model of copyright to allow balancing between the Copyclause and the First is to permit copyright of a particular expression, but not the underlying ideas. ref: Lee v. Runge 404 U.S. 887, 92 S. Ct. 197, 30 L. Ed. 2d 169 (1971). "The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher ihs treatise and thus obtain a monopoly on the ideas contained. We should not construe the copyright laws to conflict so patently with the values that the First Amendment was designed to protect." U.S. v. Bodin, 375 F. Supp. 1265 (W.D. Okla. 1974). "There is here no restraint on the use of an idea or concept." Mazer v. Stein, 347 U.S. 201, 74 S. Ct. 460, 98 L. Ed. 630 (1954). Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). "the expression of ideas." Judge Learned Hand: Nichols v. Universal Pictures Co., 45 F. 2d 119, 121 (2d Cir. 1930). copyright "cannot be limited literally to the text, else a plagiarist would escape by immaterial variations." In reference to the boundary between immaterial and material variations, Judge Hand said: "wherever is drawn, it will seem arbitrary..." Hand devised test in Nichols: "Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of ony its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his 'ideas' to which, apart from their expression, his property is never extended" Peter Pan Fabrics, Inc. at 489. "the test for infringement of a copyright is of necessity vague." Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56 (1930). In the context of copyright, ideas are "free as air." Paul Fenimore's commentary on Smolla's next section: At this point, Smolla assess the issue of whether or not the fuzzy distinction between ideas and their expression is consistent with the First. His analysis is fine in the context of pre-1201 law, because Title 17 had no provision making a linkage between writing and reading or recording and performance, prior to the DMCA. Smolla's assessment is insufficient to fully analyze the implications of "access control"s which are situated between writing and publication on the one side, and reading on the other side. Two possible resolutions are, 1. abolish mandatory access controls as an unconstitutional violation of the First, or 2. seperately protect speaking and listening under the First, with access as part of an extended "fair use". This second course would require major modifications to the Court's view of things in Griswold, where as a matter of First Amendment right, the two activities of transmission and receipt of information are seen as insuperable. ==> Paul Fenimore says, NOTA BENE! The idea/expression categories are traditionally used to determine if speech is protected or unprotected by the First. It is not generally used to determine if material constitutes a "writing" for the purposes of the Copyclause, although Smolla reports that this has been suggested. ref: Paul Goldstein, Federal Systems Ordering under the Copyright System, 69 Colum. L. Rev. 49, 81 (1969). * Benjamin Kaplan, An Unhurried View of Copyright 97-98 (1967). Paul Fenimore objects here that Smolla's discussion of idea/expression in supra note 18, Smolla, Rodney A., "Smolla and Nimmer on Freedom of Speech", page 21-11 fails to maintain an adequate distinction between fixation into a tangbile medium, and performance. Further, the word "dichotomy" has unfortunate connotations if one takes Judge Hand's "abtraction test" to be the correct one: The full supra note is quoted below: "Instead of applying the idea-expression" dichotomy to the definitional balance of 'freedom' under the First Amendment, the same dichotomy might be used in arriving at a definitional balance of the term "writings" under the Copyright Clause. See Paul Goldstein, Federal Systems Ordering of the Copyright System, 69 Colum L Rev 49, 81 (1969). Such an approach, however, might prove unsatifactory, since ideas are necessarily created within the context of an 'expression.' If it is once granted that the author has created a 'writing' within the constitutional sense, then Congress clearly has the right under the Copyright Clause to regulate conduct which draws upon the writing, even if such conduct does not in itself involve manipulation of the 'writing' per se. For example, Congress probably could not enact copyright legislation relating to live performances since a work in order to constitute a 'writing' must be erduced to tangible form. See Nimmer on Copyright, \S 1.8[2]; but cf. Benjamin Kaplan, An Unhurried View of Copyright 97-98 (1967). Nevertheless, once a work is embodied in tangible form, Congress does have the right under its copyright power to grant to the author of such a work the exclusive right to control live performances of the work. See Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390, 88 S. Ct. 2084, 20 L Ed. 2d 1176 (1968). Similarly, if the idea-expression dichotomy were applied to the Copyright Clause, it might be aruged that once copyright status attaches to an expression as a 'writing,' Congress might properly under the Copyright Clause regulatee the nonwriting idea contained in the expression though it is exploited apart from its original expression." Importantly, Smolla's remarks about copyrighting ideas if the abstraction test is applied to 'writing' rather than 'freedom,' are badly misplaced. Art. 1, \S 8 of the Constitution is _both_ the coyright and patent clauses simultaneously: 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; Smolla's suggestion would make the distinction between copyrights and patents, _as it is made in the Constitution_, a meaningless one. In particular the words, "Authors and Inventors ... their respective Writings and Discoveries," is in concordance with a dictomy between copyright on expression and patent on ideas. ref: Smolla: Piracy is not _self_-expression, therefore it is not protected by the First. ref: Dodd, Mead & Co., Inc. v. Lilienthal, 514 F. Supp. 105, 7 Media L. Rep. 1751 (S.D.N.Y. 1981). Paul Fenimore's commentary: Access to published, non-infringing material is, as both a matter of common-sense and statute, not "piracy." ref: 17 USC 1201(c): Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. Smolla comments that under the scheme above, and in case law, the First Amendment is generally not a defense to copyright infringement. Ref: * Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 558 (1985). Cf. Pacific & Southern Co. v. Duncan, 572 F. Supp. 1186, 1197, 9 Media L. Rep. 2489 (N.D. Ga. 1983). * Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, n. 13, 97 S. Ct. 2849, 53 L. Ed. 2d 965, (1977). Cf. supra note 159; Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1179 n.2, 6 Media L. Rep. 1734 (5th Circ. 1980). Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Circ. 1977). Wainwright Sec., Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 2 Medial L. Rep. 2153 (2d Circ. 1977). Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Circ. 1978). Dallas Cowboys Cheerleaders, Inc. v Scoreboard Posters, Inc., 600 F.2d 1184, 5 Media L. Rep. 1904 (5th Circ. 1979). Schnapper v. Foley, 471 F. Supp. 429 (D.D.C. 1979), aff'd 667 F.2d 102 (D.C. Circ. 1981). * Universal Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 7 Media L. Rep. 2065 (9th Circ. 1981), rev'd on other grounds, 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). Smolla comments: "increased access to copyrighted materials does not justify a First Amendment defense". Roy Export Co. v. Columbia Broadcasting Sys., Inc. 672 F.2d 1095, 8 Media L. Rep. 1637 (2d Circ. 1982). Dodd, Mead & Co., Inc. v. Lilienthal, 514 F. Supp. 105, 7 Media L. Rep. 1751 (S.D.N.Y. 1981). Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554, 7 Media L. Rep. 1057 (D.D.C 1981). Encyclopedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982); Cf. Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Prods., Inc., 479 F. Supp. 351, 5 Media L. Rep. 2092 (N.D. Ga. 1979) Smolla on fair use and parody: "the Supreme Court applied the fair use doctrine in the context of parody, a genre of speech vital to an open culture and strongly protected by the First Amendment tradition." Ref: Campbell v. Acuff-Rose, Inc., -- U.S. --, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150 (M.D. Tenn. 1991); Acuff-Rose Music, Inc. v. Campbell, 972 F. 2d 1429 (6th Circ. 1992). Hustler Magazine Inc. v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). Fiest Publications v. Rural Telephone Service Co., 499 U.S. 340, 359, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 19:19:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25300 for dvd-discuss-outgoing; Wed, 8 Mar 2000 19:19:34 -0500 Received: from MIT.EDU (SOUTH-STATION-ANNEX.MIT.EDU [18.72.1.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA25297 for ; Wed, 8 Mar 2000 19:19:34 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA24498; Wed, 8 Mar 00 20:32:36 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id UAA15362 for ; Wed, 8 Mar 2000 20:32:38 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id UAA13772 for ; Wed, 8 Mar 2000 20:32:37 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id UAA05639; Wed, 8 Mar 2000 20:32:37 -0500 (EST) Date: Wed, 8 Mar 2000 20:32:37 -0500 (EST) Message-Id: <200003090132.UAA05639@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >> Seth Finkelstein writes: >> This is an assertion I've heard a few times, and certainly it's >> what defense counsel would argue. However, I'm worried that there's is >> strong counter-argument that censorware blacklists *are* copyrighted >> as "compilation copyright". That they are not pure databases within >> the above meaning, but rather contain "selection, arrangement, and >> coordination" that so qualify them for copyright protection. > "Robert S. Thau" > Wouldn't this require the plaintiffs to demonstrate that the > arrangement has some real significance? I think the key word above is "selection". Again, I am not a lawyer, but my worry is the element of manufacturer's choice would prove to be enough to trigger copyright protection. Certainly that's what the plaintiff will likely argue. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- (and co-founder (now retired) Censorware Project http://censorware.org) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 19:38:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28934 for dvd-discuss-outgoing; Wed, 8 Mar 2000 19:38:12 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA28922 for ; Wed, 8 Mar 2000 19:38:08 -0500 Received: (qmail 13357 invoked by uid 502); 9 Mar 2000 01:53:09 -0000 Date: Wed, 8 Mar 2000 20:53:09 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000308205309.B12621@linuxpower.org> References: <20000308181116.10248.qmail@web505.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000308181116.10248.qmail@web505.mail.yahoo.com>; from Bryan Taylor on Wed, Mar 08, 2000 at 10:11:16AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > Any feedback would be appreciated, but I'm not going to debate the > points in it. The purpose of this essay is to advocate a position, not > to be "fair" to both sides of the debate. If you have evidence that > supports or refutes anything in particular, that would be most helpful. Bryan.. what you're describing in this paragraph is propaganda, not information. How exactly does this help anyone when you say out front that you only intend to tell half of the story? I sincerely doubt that the EFF attorneys are looking for an op-ed column; it seems to me that what they're asking for is an intelligence report. You don't write a useful intelligence report - or a scientific paper, or a legal analysis - by advocating positions. You show facts, build logics, and then accept the end results with a degree of honesty and integrity. Anything else is useless flag-waving and ego-thumping. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 20:09:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA01851 for dvd-discuss-outgoing; Wed, 8 Mar 2000 20:09:17 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA01848 for ; Wed, 8 Mar 2000 20:09:15 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id SAA16016 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 18:33:19 -0800 Date: Wed, 8 Mar 2000 18:33:19 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000308183319.D15370@duskglow.com> References: <20000308181116.10248.qmail@web505.mail.yahoo.com> <20000308205309.B12621@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000308205309.B12621@linuxpower.org>; from greslin@linuxpower.org on Wed, Mar 08, 2000 at 08:53:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At least he said it up front. Proganda has its function, as long as it is clearly marked as such. Honestly, lots of lawyers resort to propaganda just as much. Not to say its right, but more to say that it's not entirely out of bounds. Devil's advocate has its place, and... the opposite also does. The major thing is that we're beginning to see the function of both, wouldn't you say? --Russell On Wed, Mar 08, 2000 at 08:53:09PM -0500, greslin@linuxpower.org wrote: > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > Any feedback would be appreciated, but I'm not going to debate the > > points in it. The purpose of this essay is to advocate a position, not > > to be "fair" to both sides of the debate. If you have evidence that > > supports or refutes anything in particular, that would be most helpful. > > Bryan.. what you're describing in this paragraph is propaganda, not information. > How exactly does this help anyone when you say out front that you only > intend to tell half of the story? > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > it seems to me that what they're asking for is an intelligence report. You > don't write a useful intelligence report - or a scientific paper, or a legal > analysis - by advocating positions. You show facts, build logics, and then > accept the end results with a degree of honesty and integrity. > > Anything else is useless flag-waving and ego-thumping. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 20:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07791 for dvd-discuss-outgoing; Wed, 8 Mar 2000 20:56:22 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA07788 for ; Wed, 8 Mar 2000 20:56:21 -0500 Received: (qmail 29164 invoked by uid 500); 9 Mar 2000 20:45:56 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 9 Mar 2000 20:45:56 -0000 Date: Thu, 9 Mar 2000 12:45:56 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power In-Reply-To: <20000308205309.B12621@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > Any feedback would be appreciated, but I'm not going to debate the > > points in it. The purpose of this essay is to advocate a position, not > > to be "fair" to both sides of the debate. If you have evidence that > > supports or refutes anything in particular, that would be most helpful. > > Bryan.. what you're describing in this paragraph is propaganda, not information. > How exactly does this help anyone when you say out front that you only > intend to tell half of the story? > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > it seems to me that what they're asking for is an intelligence report. You > don't write a useful intelligence report - or a scientific paper, or a legal > analysis - by advocating positions. You show facts, build logics, and then > accept the end results with a degree of honesty and integrity. > > Anything else is useless flag-waving and ego-thumping. I agree. To a certain extent all "logic" has a sway, a position. Scientific papers have a position. Suddle but it has a position. Thus makes it bias. The judge in New York shows great bias. It's hard or even impossible to convince a judge once he is being bought. Laws created by the people are inaccurate. Laws put by nature is the most true form there is. We refine law to make it as accurate to nature as possible. Newton laws were inaccurate. It was later refine by Einstien. Even quantum mechanics are inaccurate. Experiment shows our quantum theory fail at more precise level. :) Thus scientific papers are opinions by people, not actually law of nature. "Human rights" is law of nature. The concept of law of supply and demand is law of nature. If people start pirating movies, the MPAA will move onto other occupations or areas of work that make money. Laws impose by the US gov't or any gov't for that matter will ultimately fail due its inconsistency to the law of nature. The Internet is a great way to test how far the US gov't can stretch its dominance onto the world. They've been successful for the last 50 years. Can they be successful the next 50 years? I hear China. The best way to resolve this issue is to let the people of the Internet vote whether we should allow the human rights "to think" flourish. The issue with DeCSS reflects 2 countries: United States and Norway. I never heard of Norway passing the DMCA. The DMCA is what the judge in New York go by to order a preliminary injunction. That should in no way affect the legality of DeCSS in Norway. The DMCA in this issue is invalid, since it reflects Norway as well. The generality of this issue is a human rights issue, as I've tried to convince most of you to steer into. By arguing about the DMCA we are falling into a trap. If you guys play this game right don't argue the DMCA. The people who lobby and wrote it, intentionally want to plant the foundation to create CSS. Thus the lawsuit. I hope the defendant in case steer away from DMCA and move toward human rights. It's a game, MPAA plant the seed before you decide to take the offense. We should be careful not to fall in their strategy. Kent Nguyen > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 21:37:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12935 for dvd-discuss-outgoing; Wed, 8 Mar 2000 21:37:17 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12932 for ; Wed, 8 Mar 2000 21:37:17 -0500 From: kmself@ix.netcom.com Received: from navel (sji-ca41-70.ix.netcom.com [209.111.208.70]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with ESMTP id WAA01005 for ; Wed, 8 Mar 2000 22:50:20 -0500 (EST) Received: from karsten by navel with local (Exim 3.12 #1 (Debian)) id 12Stxq-0006hU-00 for ; Wed, 08 Mar 2000 19:50:18 -0800 Date: Wed, 8 Mar 2000 19:50:18 -0800 To: dvd-discuss Subject: [dvd-discuss] Self Introduction Message-ID: <20000308195018.C25642@ix.netcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.1.5i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A quick hello to the list. I'm a Linux user, part time legal buff, non-lawyer, and have been following copyright and patent issues relating open source/free software for the past several years. I'm currently hacker/evangelist for OpenSales, http://www.opensales.org/, though I'm here as myself. I organized and moderated the DVD/DeCSS panel at LWE in New York this past February (hi, Allonn, and others) -- with a lot of help from others, . Had heard about the OpenLaw site and finally signed on after reading Declan's Wired article this afternoon. Nice FAQ that's been put together, time to catch up on the archives . -- Karsten M. Self (kmself@ix.netcom.com) What part of "Gestalt" don't you understand? Scope out Scoop: http://scoop.kuro5hin.org/ Nothin' rusty about Kuro5hin: http://www.kuro5hin.org/ From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 21:38:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12998 for dvd-discuss-outgoing; Wed, 8 Mar 2000 21:38:01 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA12995 for ; Wed, 8 Mar 2000 21:37:59 -0500 Received: (qmail 13482 invoked by uid 502); 9 Mar 2000 03:52:58 -0000 Date: Wed, 8 Mar 2000 22:52:58 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000308225258.D12621@linuxpower.org> References: <20000308205309.B12621@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 09, 2000 at 12:45:56PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 12:45:56PM -0800, Kent Nguyen wrote: > > > On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > > > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > > > Any feedback would be appreciated, but I'm not going to debate the > > > points in it. The purpose of this essay is to advocate a position, not > > > to be "fair" to both sides of the debate. If you have evidence that > > > supports or refutes anything in particular, that would be most helpful. > > > > Bryan.. what you're describing in this paragraph is propaganda, not information. > > How exactly does this help anyone when you say out front that you only > > intend to tell half of the story? > > > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > > it seems to me that what they're asking for is an intelligence report. You > > don't write a useful intelligence report - or a scientific paper, or a legal > > analysis - by advocating positions. You show facts, build logics, and then > > accept the end results with a degree of honesty and integrity. > > > > Anything else is useless flag-waving and ego-thumping. > > I agree. To a certain extent all "logic" has a sway, a > position. Scientific papers have a position. Suddle but it has a > position. Thus makes it bias. The judge in New York shows great > bias. It's hard or even impossible to convince a judge once he is being > bought. Excuse me.. but did you have a point in this post? You start by saying "I agree" to my statement and then follow it up by arguing that it's okay to be biased because everyone's doing it these days. Then you ramble on for several paragraphs, not really making any sense. Let me ask *this* question - is there anyone, absolutely anyone, reading this forum who believes that honesty, integrity and a respect for the facts is less important than winning this case? I'd really like to know, because if we're going to be a propaganda farm then I signed up with the wrong camp and would like to be let off at the next stop. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 21:56:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14529 for dvd-discuss-outgoing; Wed, 8 Mar 2000 21:56:07 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA14526 for ; Wed, 8 Mar 2000 21:56:06 -0500 Received: (qmail 31491 invoked from network); 9 Mar 2000 04:05:08 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 9 Mar 2000 04:05:08 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA29739; Wed, 8 Mar 2000 20:09:28 -0800 Date: Wed, 8 Mar 2000 20:09:28 -0800 Message-Id: <200003090409.UAA29739@ns1.filetron.com> Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Content-Type: multipart/mixed; boundary="----------=_952574968-29738-0" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format... ------------=_952574968-29738-0 Content-Type: text/plain Content-Disposition: inline Joshua Daub wrote: >See my previous post on this subject. However, you prove my point: > >>Briefly, censorware, more euphemistically called >>"Internet Filtering" programs, are in essence big blacklists of >>forbidden words or web sites. Reminds me of a case about a copyrighted list of scholarships. There's revenue associated with owning that list. There's revenue in the blacklist. What's the difference? Remember anyone that tried to make a review of the product in the early days got sued for copyright infringement. >Again this is just a list. Has any court ruled that these lists are >protected by copyright? If not, no fear of DMCA. > >>Almost all censorware programs attempt to keep these blacklists >>secret, through the use of encryption of the words or sites on the >>blacklist. So decoding this encryption would arguably be a >>straightforward action to "circumvent a technological measure that >>effectively controls access to a work protected under this title", >>violating DMCA 1201(a)(1). > >However, "a work protected under this title" refers to a work that is >protected by copyright law. Therefore, there is no prohibition on accessing >a work, whether encrypted or not, if the work is not protected by copyright >law. >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com ------------=_952574968-29738-0 Content-Type: image/pjpeg ; name="mind.jpg" Content-Disposition: inline; filename="mind.jpg" Content-Transfer-Encoding: base64 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 21:56:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14544 for dvd-discuss-outgoing; Wed, 8 Mar 2000 21:56:18 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA14541 for ; Wed, 8 Mar 2000 21:56:17 -0500 Received: (qmail 31496 invoked from network); 9 Mar 2000 04:05:19 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 9 Mar 2000 04:05:19 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA29751; Wed, 8 Mar 2000 20:09:39 -0800 Date: Wed, 8 Mar 2000 20:09:39 -0800 Message-Id: <200003090409.UAA29751@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: >See my previous post on this subject. However, you prove my point: > >>Briefly, censorware, more euphemistically called >>"Internet Filtering" programs, are in essence big blacklists of >>forbidden words or web sites. Reminds me of a case about a copyrighted list of scholarships. There's revenue associated with owning that list. There's revenue in the blacklist. What's the difference? Remember anyone that tried to make a review of the product in the early days got sued for copyright infringement. >Again this is just a list. Has any court ruled that these lists are >protected by copyright? If not, no fear of DMCA. > >>Almost all censorware programs attempt to keep these blacklists >>secret, through the use of encryption of the words or sites on the >>blacklist. So decoding this encryption would arguably be a >>straightforward action to "circumvent a technological measure that >>effectively controls access to a work protected under this title", >>violating DMCA 1201(a)(1). > >However, "a work protected under this title" refers to a work that is >protected by copyright law. Therefore, there is no prohibition on accessing >a work, whether encrypted or not, if the work is not protected by copyright >law. >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 21:58:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14840 for dvd-discuss-outgoing; Wed, 8 Mar 2000 21:58:58 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA14837 for ; Wed, 8 Mar 2000 21:58:56 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id UAA16532 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 20:23:00 -0800 Date: Wed, 8 Mar 2000 20:23:00 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000308202300.G15370@duskglow.com> References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000308225258.D12621@linuxpower.org>; from greslin@linuxpower.org on Wed, Mar 08, 2000 at 10:52:58PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I absolutely believe this. My personal morals are those of integrity first, everything else second. My only concern is that the "other side" is not going to share these same morals. Keeping the moral high ground is very important but it doesn't mean a whole lot if the system is corrupt. Seems to me this is a choice only the lawyers can make in this case. Because of that, we should definitely put honesty, integrity, and repect for the facts first, and let the lawyers decide (and they've given absolutely no reason to think they won't) if they are to continue with these ideals in the courtroom. In other words, Rob's right. There's not a whole lot of use for propaganda on this list. If we want to wage a PR war, THEN propaganda, to a limited degree, is acceptable, but it probably shouldn't be done or co-ordinated here. Our whole purpose for being is to assist the lawyers in their task to the best of our ability. Unfounded opinions muddy the water and waste everyone's time. --Russell On Wed, Mar 08, 2000 at 10:52:58PM -0500, greslin@linuxpower.org wrote: > > Let me ask *this* question - is there anyone, absolutely anyone, reading > this forum who believes that honesty, integrity and a respect for the facts > is less important than winning this case? I'd really like to know, because > if we're going to be a propaganda farm then I signed up with the wrong > camp and would like to be let off at the next stop. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:11:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15662 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:11:43 -0500 Received: from dial183.roadrunner.com (dial183.cybermesa.com [209.12.75.183]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA15659 for ; Wed, 8 Mar 2000 22:11:40 -0500 Received: (from paul@localhost) by dial183.roadrunner.com (8.8.7/8.8.7) id VAA02941 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 21:28:00 -0700 Date: Wed, 8 Mar 2000 21:27:59 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! Message-ID: <20000308212759.A1948@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from Abarron@omm.com on Wed, Mar 08, 2000 at 02:26:28PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 02:26:28PM -0800, Barron, Austin wrote: > just a quick point, but likening cable t DVDs is apples and highlighters. > cable is a different medium, where access control is the only way to protect > a data stream that can be split. it's a live, continuing service that isn't > embodied in a tangible medium -- the access control law here is really just > a federal theft of services law. I re-read what I wrote, and in the context of the one message, the meaning isn't clear enough. Apples and highlighters is the point. In the past Congress has in fact passed laws controlling access to expressive material. But only in the context of commerce, never (never = so far determined on this list) in the context of copyright. It's an argument that access controls are really a commerce power issue, and that Congress is trying to pretend that the Copyclause doesn't exist. If access is really commerce clause and not copyright clause, then impact on the First Amendment will be judged by strict scrutiny. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:12:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15691 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:12:13 -0500 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA15688 for ; Wed, 8 Mar 2000 22:12:13 -0500 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA12667; Wed, 8 Mar 2000 23:25:17 -0500 Date: Wed, 8 Mar 2000 23:25:17 -0500 From: Jim Bauer Message-Id: <200003090425.XAA12667@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DNA research impossible without reverse engineering Newsgroups: local.dvd-discuss In-Reply-To: <200003080449.UAA24069@ns1.filetron.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <200003080449.UAA24069@ns1.filetron.com> you write: > >Also we need to get the word out. Reverse engineering is not a cloak and dagger game. Emulating a piece of hardware is not rocket science. The high tech spectre is spooking everyone into thinking this takes alien technology to build. > I have been defining reverse engineering as learning how something works. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:24:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16298 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:24:18 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA16294 for ; Wed, 8 Mar 2000 22:24:17 -0500 Received: (qmail 29048 invoked by uid 60001); 9 Mar 2000 04:37:15 -0000 Message-ID: <20000309043715.29047.qmail@web501.mail.yahoo.com> Received: from [24.28.154.65] by web501.mail.yahoo.com; Wed, 08 Mar 2000 20:37:15 PST Date: Wed, 8 Mar 2000 20:37:15 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > Any feedback would be appreciated, but I'm not going to debate the > > points in it. The purpose of this essay is to advocate a position, > > not to be "fair" to both sides of the debate. If you have evidence that > > supports or refutes anything in particular, that would be most > > helpful. > > Bryan.. what you're describing in this paragraph is propaganda, not > information. How exactly does this help anyone when you say out front > that you only intend to tell half of the story? > I sincerely doubt that the EFF attorneys are looking for an op-ed > column; it seems to me that what they're asking for is an intelligence > report. You don't write a useful intelligence report - or a scientific paper, > or a legal analysis - by advocating positions. You show facts, build > logics, and then accept the end results with a degree of honesty and > integrity. > > Anything else is useless flag-waving and ego-thumping. Your opinion is noted. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:28:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16719 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:28:04 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA16716 for ; Wed, 8 Mar 2000 22:28:03 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 691EA7709; Wed, 8 Mar 2000 22:41:37 -0600 (CST) Date: Wed, 8 Mar 2000 22:41:37 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! Message-ID: <20000308224137.A1102@arh1176.urh.uiuc.edu> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: ; from Abarron@omm.com on Wed, Mar 08, 2000 at 02:26:28PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 02:26:28PM -0800, Barron, Austin wrote: > just a quick point, but likening cable t DVDs is apples and highlighters. > cable is a different medium, where access control is the only way to protect > a data stream that can be split. it's a live, continuing service that isn't > embodied in a tangible medium -- the access control law here is really just > a federal theft of services law. Well, if I take a take a really radical view on this (just for the sake of argument, this is all hypothetical), could I argue that once the encrypted cable stream is in a wire owned by me (inside my house in other words) I can do with it as I please? After all, I have rights to the material that is sent to my by the cable company. Courts have supported my right to record it for personal use for example. I can consider the cable subscription as having two parts that I am paying for: one the actual broadcasts that come down the wire. The other part is the service of delivering those broadcasts. I could consider the cable subscription as a contract to provide me with television shows. I could theoretically record every show on every channel. This would be a lot like keeping every morning newspaper I have delivered, only that the cable broadcast comes all the time, not just once a day. It would be clear theft of service if I tapped into their line at the street (where they own it) but in my house, their service is done and the content is mine to do what I choose with (within the limits of normal copyright of course). That is really the issue, I think. Copyright is being applied to things it should not be applied to. The use I make of a DVD after I buy it is my business, and not that of the MPAA or the DVD CCA, or anyone else. -- Steven Barker scbarker@uiuc.edu From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:36:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17483 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:36:03 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17466 for ; Wed, 8 Mar 2000 22:36:02 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id UAA03503 for dvd-discuss@eon.law.harvard.edu; Wed, 8 Mar 2000 20:46:54 -0800 Date: Wed, 8 Mar 2000 20:46:54 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! Message-ID: <20000308204654.X13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000308224137.A1102@arh1176.urh.uiuc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000308224137.A1102@arh1176.urh.uiuc.edu>; from steve@arh1176.urh.uiuc.edu on Wed, Mar 08, 2000 at 10:41:37PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: > On Wed, Mar 08, 2000 at 02:26:28PM -0800, Barron, Austin wrote: > > just a quick point, but likening cable t DVDs is apples and highlighters. > > cable is a different medium, where access control is the only way to protect > > a data stream that can be split. it's a live, continuing service that isn't > > embodied in a tangible medium -- the access control law here is really just > > a federal theft of services law. > > Well, if I take a take a really radical view on this (just for the sake of > argument, this is all hypothetical), could I argue that once the encrypted > cable stream is in a wire owned by me (inside my house in other words) I can > do with it as I please? That would be cool, and it would abolish all of Title 17 and probably about 1/3 of Title 18. See 17 USC 202: "Ownership of a copyright ... is distinct from ownership of any material object ..." I wish you lots of success with your view and argument. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:41:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17827 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:41:12 -0500 Received: from mybox.nadia (pool0957.cvx12-bradley.dialup.earthlink.net [209.179.229.192]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17824 for ; Wed, 8 Mar 2000 22:41:10 -0500 Received: from swlaw.edu (localhost.localdomain [127.0.0.1]) by mybox.nadia (Postfix) with ESMTP id EC5AA19286 for ; Wed, 8 Mar 2000 20:54:00 -0800 (PST) Message-ID: <38C72E68.36E737CF@swlaw.edu> Date: Wed, 08 Mar 2000 20:54:00 -0800 From: Ammon Dorny X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.14-15mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hello all, Rob, excellent point and well put. If I understand the whole premise to this forum, more eyeballs a better argument makes. There is a noticeable lack of emphasis on help obscuring, propagandizing, distracting or anything else that clouds the issues. It only takes one or two people to achieve that. I am a third year law student trying to catch up on the archive discussion after being alarmed by todays Wired article. Ammon Dorny http://home.earthlink.net/~adorny/ greslin@linuxpower.org wrote: > Let me ask *this* question - is there anyone, absolutely anyone, reading > this forum who believes that honesty, integrity and a respect for the facts > is less important than winning this case? I'd really like to know, because > if we're going to be a propaganda farm then I signed up with the wrong > camp and would like to be let off at the next stop. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:47:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18217 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:47:15 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA18214 for ; Wed, 8 Mar 2000 22:47:14 -0500 Received: (qmail 7997 invoked by uid 60001); 9 Mar 2000 04:59:28 -0000 Message-ID: <20000309045928.7996.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Wed, 08 Mar 2000 20:59:28 PST Date: Wed, 8 Mar 2000 20:59:28 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] First Amendment and Fair Use To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's some interesting quotes from the 2nd Circuit Court of Appelas (Kaplan's Circuit), regarding the First Amendment's relation to Fair Use. These should work pretty well with the computer program = literary work support that I posted the other day. ______________ NEW ERA PUBLICATIONS INT'L. vs. HENRY HOLT and COMPANY United States Court Of Appeals For The Second Circuit 873 F.2d 576 (1989) "Our observation that the fair use doctrine encompasses all claims of first amendment in the copyright field, Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1099-100 (2d Cir.), cert. denied, 459 U.S. 826, 74 L. Ed. 2d 63, 103 S. Ct. 60 (1982), never has been repudiated. See, e.g., Harper and Row, 471 U.S. at 557. An author's expression of an idea, as distinguished from the idea itself, is not considered subject to the public's 'right to know.'" _________________ WAINWRIGHT SECURITIES INC., vs. WALL STREET TRANSCRIPT CO, et al. United States Court Of Appeals For The Second Circuit 558 F.2d 91 (1977) "Conflicts between interests protected by the first amendment and the copyright laws thus far have been resolved by application of the fair use doctrine." "Some day, legitimate in-depth news coverage of copyrighted, small-circulation articles dealing with areas of general concern may require courts to distinguish between the doctrine of fair use and 'an emerging constitutional limitation on copyright contained in the first amendment.' Nimmer, Does Copyright Abridge The First Amendment Guarantees Of Free Speech And Press ? 17 U.C.L.A. L.Rev. 1180, 1200 (1970). " __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 22:51:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18321 for dvd-discuss-outgoing; Wed, 8 Mar 2000 22:51:01 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA18314 for ; Wed, 8 Mar 2000 22:51:00 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 010E57709; Wed, 8 Mar 2000 23:04:33 -0600 (CST) Date: Wed, 8 Mar 2000 23:04:33 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000308230433.B1102@arh1176.urh.uiuc.edu> References: <200003082353.SAA05313@oobleck.mit.edu> <200003090035.TAA12511@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <200003090035.TAA12511@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Mar 08, 2000 at 07:35:45PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 07:35:45PM -0500, Robert S. Thau wrote: > Seth Finkelstein writes: > > This is an assertion I've heard a few times, and certainly it's > > what defense counsel would argue. However, I'm worried that there's is > > strong counter-argument that censorware blacklists *are* copyrighted > > as "compilation copyright". That they are not pure databases within > > the above meaning, but rather contain "selection, arrangement, and > > coordination" that so qualify them for copyright protection. > > Wouldn't this require the plaintiffs to demonstrate that the > arrangement has some real significance? Speaking just as an engineer, > I doubt it makes any difference to the program whether whitehouse.com > comes before or after playboy.com in the block list (unless the > program relies on the list being sorted --- and I believe that mere > alphabetization flunks the test for protectable "selection, > arrangement and coordination"). It is the "selection" part that is important. The list of blocked sites is not all the pages on the web, it is only the ones that the company thinks are offensive for whatever reason. That is a creative judgement, to some degree. Having their lists protected by copyright makes sense for the companies, because otherwise a competitor could simply copy their list and sell it's own product at a lower price (or for more profit). Now, if the motive of the censorware was really to help prevent people from accessing websites they didn't want to see, this would be a good thing. The fact that the companies do not even let their customers view the lists shows us pretty clearly that their motives are more to make money that to help people manage their use of the internet. -- Steven Barker scbarker@uiuc.edu The cow is nothing but a machine which makes grass fit for us people to eat. -- John McNulty From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 23:35:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22269 for dvd-discuss-outgoing; Wed, 8 Mar 2000 23:35:58 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22265 for ; Wed, 8 Mar 2000 23:35:58 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 4A3907709; Wed, 8 Mar 2000 23:49:32 -0600 (CST) Date: Wed, 8 Mar 2000 23:49:31 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! Message-ID: <20000308234931.C1102@arh1176.urh.uiuc.edu> References: <20000308224137.A1102@arh1176.urh.uiuc.edu> <20000308204654.X13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000308204654.X13379@cty-alum.org>; from schoen@loyalty.org on Wed, Mar 08, 2000 at 08:46:54PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 08, 2000 at 08:46:54PM -0800, Seth David Schoen wrote: > Steven Barker writes: > > Well, if I take a take a really radical view on this (just for the sake of > > argument, this is all hypothetical), could I argue that once the encrypted > > cable stream is in a wire owned by me (inside my house in other words) I can > > do with it as I please? > > That would be cool, and it would abolish all of Title 17 and probably about > 1/3 of Title 18. > > See 17 USC 202: "Ownership of a copyright ... is distinct from ownership > of any material object ..." I should have been more clear in what I meant by that. I can do whatever I want with it, as long as I do not violate any of the exclusive rights of the copyright holder. This includes private performance, excerpting small portions for use in educational or journalistic work (with proper credit given), etc. What I wonder about, is if my cable company gives me a stream of HBO, why do I not have the right to descramble it (if say I decide to record it on my VCR). Really, my point is that the cable company should not be able to hide behind encryption if they are sending me things they don't want me to see. Or at least if they do, copyright law doesn't back them up. They could choose to block HBO from coming to my house at the street. But once they send me the signal, I should be able to take what they give me. In this situation, copyright laws take away my right to read something that I own physically (scrambled HBO on VHS). > I wish you lots of success with your view and argument. :-) Eh, I'm having fun, and raising some issues about copyright too. If anyone thinks I'm taking up bandwidth that should be used for more concrete analysis of caselaw or other topics I will stop... -- Steven Barker scbarker@uiuc.edu Heavier than air flying machines are impossible. -- Lord Kelvin, President, Royal Society, c. 1895 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 8 23:40:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22399 for dvd-discuss-outgoing; Wed, 8 Mar 2000 23:40:53 -0500 Received: from rgate2.ricochet.net (rgate2.ricochet.net [204.179.143.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22396 for ; Wed, 8 Mar 2000 23:40:52 -0500 Received: from shannon (mg-206253200-18.ricochet.net [206.253.200.18]) by rgate2.ricochet.net (8.9.3/8.9.3) with SMTP id XAA14876 for ; Wed, 8 Mar 2000 23:53:48 -0600 (CST) From: "John Dempsey" To: Subject: RE: [dvd-discuss] DNA research impossible without reverse engineering Date: Wed, 8 Mar 2000 21:55:04 -0800 Message-ID: <000001bf898c$03eb1cf0$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <200003090425.XAA12667@emperor.hwrd1.md.home.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I have been defining reverse engineering as learning how something works. Your definition is incomplete. The knowledge aquired by reverse-engineering necessarily doesn't include proprietary knowledge like source code, for example. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 00:29:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25366 for dvd-discuss-outgoing; Thu, 9 Mar 2000 00:29:06 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA25363 for ; Thu, 9 Mar 2000 00:29:04 -0500 Received: (qmail 30755 invoked by uid 500); 10 Mar 2000 00:18:39 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 10 Mar 2000 00:18:39 -0000 Date: Thu, 9 Mar 2000 16:18:39 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power In-Reply-To: <20000308225258.D12621@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > On Thu, Mar 09, 2000 at 12:45:56PM -0800, Kent Nguyen wrote: > > > > > > On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > > > > > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > > > > > Any feedback would be appreciated, but I'm not going to debate the > > > > points in it. The purpose of this essay is to advocate a position, not > > > > to be "fair" to both sides of the debate. If you have evidence that > > > > supports or refutes anything in particular, that would be most helpful. > > > > > > Bryan.. what you're describing in this paragraph is propaganda, not information. > > > How exactly does this help anyone when you say out front that you only > > > intend to tell half of the story? > > > > > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > > > it seems to me that what they're asking for is an intelligence report. You > > > don't write a useful intelligence report - or a scientific paper, or a legal > > > analysis - by advocating positions. You show facts, build logics, and then > > > accept the end results with a degree of honesty and integrity. > > > > > > Anything else is useless flag-waving and ego-thumping. > > > > I agree. To a certain extent all "logic" has a sway, a > > position. Scientific papers have a position. Suddle but it has a > > position. Thus makes it bias. The judge in New York shows great > > bias. It's hard or even impossible to convince a judge once he is being > > bought. > > Excuse me.. but did you have a point in this post? You start by saying > "I agree" to my statement and then follow it up by arguing that it's okay > to be biased because everyone's doing it these days. Then you ramble on > for several paragraphs, not really making any sense. > > Let me ask *this* question - is there anyone, absolutely anyone, reading > this forum who believes that honesty, integrity and a respect for the facts > is less important than winning this case? I'd really like to know, because > if we're going to be a propaganda farm then I signed up with the wrong > camp and would like to be let off at the next stop. Hey Rob, "the facts". Please define clearly the facts in this case. We know for the fact that DeCSS is created to play DVD on Linux. We know for the fact that people pirate snippets of DVD movie using DeCSS. Facts are there to make the case look better to argue. They are no substitute to stop people from "thinking" which is what this case should be about. We can live with our integrity, respect, and honesty. In order to be understood we must share. One of the reason why I'm here. I want to share you my views, my integrity, my respect, and my honesty. Propaganda define by www.dictionary.com - "the systematic propagation of a doctrine or cause or of information reflecting the views and interests of those people advocating such a doctrine or cause." So yah propaganda is good. This mailing list is a form of propaganda. My website www.newyen.com/dvd is also propaganda. It takes propaganda to propagate "integrity, respect, and honesty for the facts". Kent > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 00:46:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25859 for dvd-discuss-outgoing; Thu, 9 Mar 2000 00:46:01 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA25856 for ; Thu, 9 Mar 2000 00:46:00 -0500 Received: from [38.32.11.98] (helo=ip98.bedford3.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12SwuW-0001Qj-00; Thu, 9 Mar 2000 01:59:04 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Legal issues #3 Date: Thu, 09 Mar 2000 06:57:51 GMT Message-ID: <38cc438d.55428848@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id AAA25857 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >3. Comprehensive Fair Use Analysis. We need a memo outlining the most >important fair use cases (approx. 35) and discussing how they impact >this case. [Trying to buffer the list. ] This case seems to work against us. Perhaps it might act as a contrast(?) The defendants were found guilty of commercially distributing a chip for decoding VideoCipher II satellite TV. They claimed a fair use exemption, but were shot down because their "fair use" was not shown to be for some "legitimate, fair and reasonable purpose." For those who argue a major rift between video disc and cable TV, I would suggest that if the video and audio content has been fixated to tape or hard disk, it is also no longer merely a service, but a commodity. There were also extenuating facts like : "a Descrambling Summit,-- held in three successive sessions from January 14 through 22, 1987, on the Islands of Providenciales, Turks and Caicos in the British West Indies. Cooper, who maintained an office in Fort Lauderdale, Florida, organized the summit. The purpose of the summit was to educate those attending on the descrambling system, including how the VideoCipher Registered TM II had been broken, and the availability of various pirate chips. Each of the three hundred attendees paid a fee of $ 1,500.00, which included round-trip air fare from Fort Lauderdale..." CABLE/HOME COMMUNICATION CORPORATION, M/A-Com, Inc., Home Box Office, Inc., and Showtime/The Movie Channel, Inc., Plaintiffs-Appellees, vs. NETWORK PRODUCTIONS, INC. and Shaun Kenny, Defendants-Appellants. Bob Cooper, Jr., et al., Defendants Nos. 88-5647, 89-5081 United States Court Of Appeals For The Eleventh Circuit 902 F.2d 829, 15 U.S.P.Q.2D (BNA) 1001, Copy. L. Rep. (CCH) P26,588, 67 Rad. Reg. 2d (P & F) 1746, 1990 U.S. App. Decision June 4, 1990 "Defendants-appellants have claimed that their affirmative defense of fair use precludes a finding of copyright infringement. "Fair use" describes "limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection." Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867, 85 L. Ed. 2d 161 (1985); see also Tennessee Fabricating, 421 F.2d at 284 ("To constitute 'fair use' the permitted use must be for some legitimate, fair and reasonable purpose."). {F.2d 844} The Copyright Act mandates four nonexclusive factors which courts shall consider case by case in determining fair use, a mixed question of fact and law: The fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use Defendants-appellants have claimed that their affirmative defense of fair use precludes a finding of copyright infringement. "Fair use" describes "limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection." Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867, 85 L. Ed. 2d 161 (1985); see also Tennessee Fabricating, 421 F.2d at 284 ("To constitute 'fair use' the permitted use must be for some legitimate, fair and reasonable purpose."). {F.2d 844} The Copyright Act mandates four nonexclusive factors which courts shall consider case by case in determining fair use, a mixed question of fact and law: The fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use " __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 01:08:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26309 for dvd-discuss-outgoing; Thu, 9 Mar 2000 01:08:13 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA26306 for ; Thu, 9 Mar 2000 01:08:12 -0500 Received: from [38.32.11.98] (helo=ip98.bedford3.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12SxG0-0001tN-00; Thu, 9 Mar 2000 02:21:16 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Legal issues #3 Date: Thu, 09 Mar 2000 07:20:02 GMT Message-ID: <38cd4e87.58239113@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id BAA26307 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fair use was also claimed in the RIAA/Diamond Multimedia (RIO case), based on AHRA and Sony Betamax. Also relevant was the plaintiffs fear of "irreparable harm." RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC. and ALLIANCE OF ARTISTS AND RECORDING COMPANIES, Plaintiffs, vs. DIAMOND MULTIMEDIA SYSTEMS, INC., Defendant. CASE NO.: CV 98-8247 ABC (RZx) United States District Court For The Central District Of California 29 F. Supp. 2d 624, 49 U.S.P.Q.2D (BNA) 1024, 1998 U.S. Dist. Decision October 26, 1998, Decided "The Court disagrees. It is undisputed that "[a] copyright plaintiff who makes out a prima facie case of infringement is entitled to a preliminary injunction without a detailed showing of irreparable harm." Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1335 n.9 (9th Cir. 1995) (emphasis added)(quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir. 1983)). In the instant action, however, Plaintiffs are not asserting a copyright claim. If, as Plaintiffs contend, the Rio is subject to the AHRA, then copyright infringement is impossible as a matter of law. See AHRA § 1008 (prohibiting copyright infringement actions). Even if the Rio is not subject to the AHRA -- and therefore governed by the Copyright Act -- Defendant has a potential "fair use" defense that might defeat any prima facie showing of infringement. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 439-40, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1983). Moreover, the relatively few copyright cases that actually explain the rationale for the presumption confirm its inapplicability to the instant action. For example, Plaintiffs quote from Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 124 (2d Cir. 1994) for the proposition that copyright infringement "will damage the copyright holder in incalculable and incurable ways." Plfs.' Reply at 18:16-18. Adding context to the Fisher-Price quotation, the full paragraph reads: Normally, when a copyright is infringed, irreparable harm is presumed; this is because the confusion created in the marketplace will damage the copyright holder in incalculable and incurable ways. [Citations omitted]. "Confusion may cause purchasers to refrain from buying either product and to turn to those of other competitors. . . . Furthermore, if an infringer's product is of poor quality, . . . a more lasting but not readily measurable injury may be inflicted on the plaintiff's reputation in the market." [Quotation omitted]. " __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 01:14:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26786 for dvd-discuss-outgoing; Thu, 9 Mar 2000 01:14:21 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA26783 for ; Thu, 9 Mar 2000 01:14:20 -0500 Received: from [38.32.11.98] (helo=ip98.bedford3.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12SxLw-00022s-00; Thu, 9 Mar 2000 02:27:24 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Legal issues #3 Date: Thu, 09 Mar 2000 07:26:10 GMT Message-ID: <38ce515c.58964510@mail.tiac.net> References: <38cc438d.55428848@mail.tiac.net> In-Reply-To: <38cc438d.55428848@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id BAA26784 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [whoops, I clipped the good part...] > >CABLE/HOME COMMUNICATION CORPORATION, M/A-Com, Inc., Home Box Office, Inc., and Showtime/The Movie Channel, Inc., Plaintiffs-Appellees, > vs. >NETWORK PRODUCTIONS, INC. and Shaun Kenny, Defendants-Appellants. Bob Cooper, Jr., et al., Defendants > >Nos. 88-5647, 89-5081 >United States Court Of Appeals For The Eleventh Circuit >902 F.2d 829, 15 U.S.P.Q.2D (BNA) 1001, Copy. L. Rep. (CCH) P26,588, 67 Rad. Reg. 2d (P & F) 1746, 1990 U.S. App. Decision >June 4, 1990 > >"Defendants-appellants have claimed that their affirmative defense >of fair use precludes a finding of copyright infringement. "Fair use" >describes "limited and useful forms of copying and distribution that >are tolerated as exceptions to copyright protection." Pacific & >Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir. 1984), cert. >denied, 471 U.S. 1004, 105 S. Ct. 1867, 85 L. Ed. 2d 161 (1985); see >also Tennessee Fabricating, 421 F.2d at 284 ("To constitute >'fair use' the permitted use must be for some legitimate, fair and >reasonable purpose."). {F.2d 844} The Copyright Act mandates >four nonexclusive factors which courts shall consider case by >case in determining fair use, a mixed question of fact and law: > > The fair use of a copyrighted work, including such use by >reproduction in copies . . . for purposes such as criticism, >comment, news reporting, teaching (including multiple copies >for classroom use), scholarship, or research, is not an infringement >of copyright. In determining whether the use Defendants-appellants >have claimed that their affirmative defense of fair use precludes a >finding of copyright infringement. "Fair use" describes "limited and >useful forms of copying and distribution that are tolerated as >exceptions to copyright protection." Pacific & Southern Co. v. >Duncan, 744 F.2d 1490, 1494 (11th Cir. 1984), cert. denied, 471 >U.S. 1004, 105 S. Ct. 1867, 85 L. Ed. 2d 161 (1985); see also >Tennessee Fabricating, 421 F.2d at 284 ("To constitute 'fair use' >the permitted use must be for some legitimate, fair and reasonable >purpose."). {F.2d 844} The Copyright Act mandates four nonexclusive >factors which courts shall consider case by case in determining fair >use, a mixed question of fact and law: > > The fair use of a copyrighted work, including such use by >reproduction in copies . . . for purposes such as criticism, >comment, news reporting, teaching (including multiple copies >for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 01:31:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27855 for dvd-discuss-outgoing; Thu, 9 Mar 2000 01:31:57 -0500 Received: from rgate2.ricochet.net (rgate2.ricochet.net [204.179.143.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27852 for ; Thu, 9 Mar 2000 01:31:56 -0500 Received: from shannon (mg-206253202-12.ricochet.net [206.253.202.12]) by rgate2.ricochet.net (8.9.3/8.9.3) with SMTP id BAA16593 for ; Thu, 9 Mar 2000 01:44:52 -0600 (CST) From: "John Dempsey" To: Subject: [dvd-discuss] Article Information Date: Wed, 8 Mar 2000 23:46:08 -0800 Message-ID: <000001bf899b$880701c0$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000308234931.C1102@arh1176.urh.uiuc.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I read an article two weeks ago with the title like: "DMCA, a Bully Bludgeon for Corporations" This is not the exact title. I would like to find this article again. I thought it was Slashdot but could not find it there. The article explained how corporations are reading the DMCA incompletely because it does exempt activity designed to bring a piece of media to new platforms. The article suggested to me that DMCA is not an enemy but is being read selectively by pushy corporations. I don't want to paraphrase too much, I want to find the article. Reading all of DMCA is not my first choice. Please reply with any info. John From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 07:27:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA07134 for dvd-discuss-outgoing; Thu, 9 Mar 2000 07:27:39 -0500 Received: from hotmail.com (law2-f183.hotmail.com [216.32.181.183]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA07131 for ; Thu, 9 Mar 2000 07:27:38 -0500 Received: (qmail 17650 invoked by uid 0); 9 Mar 2000 13:40:13 -0000 Message-ID: <20000309134013.17649.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 05:40:13 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 08:40:13 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Joshua, you sound very sure of yourself. Perhaps you'd like to be a test >case? Feel free to grab the list mentioned at >(http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it >online, notify the company about what you've done, and let us know what >happens. :) > >-Declan That would be foolish of me. If a court found that the list was copyright protected, I would be liable under the DMCA. >At 17:46 3/8/2000 -0500, Joshua Daub wrote: >Again this is just a list. Has any court ruled that these lists are >protected by copyright? If not, no fear of DMCA. I was merely illustrating that there is a problem with an analogy to just ANY encryption technology. For DMCA purposes, the only relevant analogy is one in which the underlying work is copyright protected, because the DMCA only applies to access control to copyright protected works. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 07:47:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13950 for dvd-discuss-outgoing; Thu, 9 Mar 2000 07:47:11 -0500 Received: from hotmail.com (law2-f307.hotmail.com [216.32.180.161]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA13947 for ; Thu, 9 Mar 2000 07:47:10 -0500 Received: (qmail 67396 invoked by uid 0); 9 Mar 2000 13:59:45 -0000 Message-ID: <20000309135945.67395.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 05:59:45 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 08:59:45 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > "Robert S. Thau" > > Wouldn't this require the plaintiffs to demonstrate that the > > arrangement has some real significance? > > I think the key word above is "selection". Again, I am not a >lawyer, but my worry is the element of manufacturer's choice would >prove to be enough to trigger copyright protection. Certainly that's >what the plaintiff will likely argue. They may argue but they are likely to lose. Unless there is more to selecting the list than simply choosing from all the possibilities, there would be no protection. Example: Take a dictionary. If I compile a list of all terms relating to X, there is no copyright protection in the list, merely because I make some judgment about the terms' relationship to X. This is the "sweat of the brow" argument: I get protection because of the effort expended to compile the list. This is a great argument when combined with some form of creativity, but by itself is a loser. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:05:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA17659 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:05:03 -0500 Received: from mtiwmhc01.worldnet.att.net (mtiwmhc01.worldnet.att.net [204.127.131.36]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA17656 for ; Thu, 9 Mar 2000 08:05:02 -0500 Received: from alaptop.hotwired.com ([12.78.116.156]) by mtiwmhc01.worldnet.att.net (InterMail v03.02.07.07 118-134) with ESMTP id <20000309141745.EGCV21298@alaptop.hotwired.com> for ; Thu, 9 Mar 2000 14:17:45 +0000 Message-Id: <4.3.0.20000309091400.01c45f00@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 09 Mar 2000 09:15:59 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309134013.17649.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:40 3/9/2000 -0500, Joshua Daub wrote, quoting me: >>Joshua, you sound very sure of yourself. Perhaps you'd like to be a test >>case? Feel free to grab the list mentioned at >>(http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it >>online, notify the company about what you've done, and let us know what >>happens. :) > >That would be foolish of me. If a court found that the list was copyright >protected, I would be liable under the DMCA. Exactly. In other words, you're pretty sure that your previous argument of "no-copyright" holds no water. -Declan From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:42:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA23260 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:42:13 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA23257 for ; Thu, 9 Mar 2000 08:42:11 -0500 Received: from bugbug (max01-27.suba.com [206.69.121.219]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id IAA08486 for ; Thu, 9 Mar 2000 08:55:16 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Thu, 9 Mar 2000 08:54:19 -0600 Message-ID: <001b01bf89d7$591cd920$db7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 In-Reply-To: <20000308212759.A1948@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry, missed a point. paul wrote: > > On Wed, Mar 08, 2000 at 02:26:28PM -0800, Barron, Austin wrote: > > just a quick point, but likening cable t DVDs is apples and > highlighters. > > cable is a different medium, where access control is the only > way to protect > > a data stream that can be split. it's a live, continuing > service that isn't > > embodied in a tangible medium -- the access control law here is > really just > > a federal theft of services law. > > I re-read what I wrote, and in the context of the one message, the > meaning isn't clear enough. > > Apples and highlighters is the point. In the past Congress has in > fact passed laws controlling access to expressive material. But only > in the context of commerce, never (never = so far determined on this > list) in the context of copyright. It may seem like access control applied to works in continuing service format is redundant, but maybe it isn't. Just considering possible situations where access control protection might apply. Probably it would require the person to have purchased the service? Then making an active act of access? Again, we could argue that fair use applies *because* DVDs are tangible media, and it is precisely this sort of work for which fair use is allowed. Show that DeCSS, though access control circumvention, only circumvents on media (not on service), AND that the access control restricts normal fair use practices (list em off: right to copy (backup), right to copy in a different format, isn't there a right to reverse engineer as long as it's not an infringing use - and "access" is not included as one of the explicit reserved rights for copyright holders in 17 USC), and you have a pretty clear indication that DeCSS can be used in non-infringing ways. Because of this, there can be no substance to the trafficking charge. > > It's an argument that access controls are really a commerce power > issue, and that Congress is trying to pretend that the Copyclause > doesn't exist. If access is really commerce clause and not copyright > clause, then impact on the First Amendment will be judged by strict > scrutiny. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:44:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA23650 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:44:06 -0500 Received: from hotmail.com (law2-f125.hotmail.com [216.32.181.125]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA23646 for ; Thu, 9 Mar 2000 08:44:04 -0500 Received: (qmail 42030 invoked by uid 0); 9 Mar 2000 14:56:39 -0000 Message-ID: <20000309145639.42029.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 06:56:39 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Date: Thu, 09 Mar 2000 09:56:39 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Kent Nguyen >The judge in New York shows great >bias. It's hard or even impossible to convince a judge once he is >being >bought. The judge showed only a bias towards organized attorneys. The judge merely construed the evidence before him: the evidence the attorneys put before him, not the evidence that attorneys failed to put before him. He analyzed this evidence in light of the plain language of the act. >The issue with DeCSS reflects 2 countries: United States and >Norway. I >never heard of Norway passing the DMCA. The DMCA is >what the judge in New York go by to order a preliminary injunction. >That >should in no way affect the legality of DeCSS in Norway. >The DMCA in this issue is invalid, since it reflects Norway as well. Actually, you are misinformed here. In part, the DMCA was passed to conform the United States copyright law to an interntational intellectual copyright treaty under WIPO (World Intellectual Property Organization). If I remember correctly, the European countries were the ones who pushed for "anti-circumvention" provisions in the treaty. Admittedly, I do not know whether Norway in particular was a signatory to the treaty, nor what Norway's intellectual property law is. Even this misses the point however. Although I do not know them all offhand, there are mechanisms in international law for the application of one country's laws to acts taken outside that country. It happens all the time. The generality of this issue is a human rights issue, as I've tried to >convince most of you to steer into. By arguing about the DMCA we are >falling into a trap. If you guys play this game right don't argue the >DMCA. The people who lobby and wrote it, intentionally want to plant the >foundation to create CSS. Thus the lawsuit. I hope the defendant in case >steer away from DMCA and move toward human rights. > >It's a game, MPAA plant the seed before you decide to take the >offense. We should be careful not to fall in their strategy. I agree to a certain extent. Aruging under the DMCA is probably a loser: the anti-circumvention provisions of DMCA were passed to prevent EXACTLY the sort of action taken in the DeCSS case. You need to argue for an amendment to the DMCA, or that the DMCA is not legal. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:52:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25285 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:52:46 -0500 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA25281 for ; Thu, 9 Mar 2000 08:52:44 -0500 Received: from ppp.anonymizer.com (01-039.015.popsite.net [216.126.185.39]) by cyberpass.net (8.8.8/8.7.3) with SMTP id HAA11028 for ; Thu, 9 Mar 2000 07:08:54 -0800 (PST) Message-Id: <4.1.20000309065501.04c8c700@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Thu, 09 Mar 2000 07:04:17 -0800 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309135945.67395.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:59 AM 3/9/2000 -0500, Joshua Daub wrote: >> > "Robert S. Thau" >> > Wouldn't this require the plaintiffs to demonstrate that the >> > arrangement has some real significance? >> >> I think the key word above is "selection". Again, I am not a >>lawyer, but my worry is the element of manufacturer's choice would >>prove to be enough to trigger copyright protection. Certainly that's >>what the plaintiff will likely argue. > >They may argue but they are likely to lose. Unless there is more to >selecting the list than simply choosing from all the possibilities, there >would be no protection. Example: > >Take a dictionary. If I compile a list of all terms relating to X, there is >no copyright protection in the list, merely because I make some judgment >about the terms' relationship to X. This is the "sweat of the brow" >argument: I get protection because of the effort expended to compile the >list. This is a great argument when combined with some form of creativity, >but by itself is a loser. Perhaps, but there is more. The blacklists consist not only of selection of which sites to block (some block www.playboy.com, some don't, to use an obvious example), but also an implemented decision, whether made by man or machine, regarding which blocking categories under which to block the site. Should the theoretical abc.com be blocked under the censorware maker's intolerance category, it's sex category, it's activist category, any/all of the above, or others still? These are creative decisions (and some are *highly* creative, even if created by machine) "value-added" by the censorware makers to their lists. IOW, they're not just lists of sites. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:53:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25564 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:53:47 -0500 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA25561 for ; Thu, 9 Mar 2000 08:53:47 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA02486; Thu, 9 Mar 00 10:08:23 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id KAA18617 for ; Thu, 9 Mar 2000 10:06:52 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id KAA00452 for ; Thu, 9 Mar 2000 10:06:51 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id KAA06401; Thu, 9 Mar 2000 10:06:51 -0500 (EST) Date: Thu, 9 Mar 2000 10:06:51 -0500 (EST) Message-Id: <200003091506.KAA06401@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309135945.67395.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > "Joshua Daub" > They may argue but they are likely to lose. Unless there is more to > selecting the list than simply choosing from all the possibilities, there > would be no protection. I think the counter-argument will be exactly that there is "more", that the particular process of choosing what is to be blacklisted has the minimal elements of creativity and originality to trigger copyright protection. This is not the "sweat of the brow" argument, as it does not rely on the *effort*, but on the "originality" which will be argued to be present in the selection process itself. It certainly seems to me an argument that won't be dismissed out of hand. This actually connects to my prior point about the massive new weapon which the DMCA gives censorware-makers. The compilation copyright protection for a blacklist is certainly something that can be used in a SLAPP-context. But this copyright, however minor, however weak, if it is present at all, can then be used to leverage the full effect of the DMCA - for orders of magnitude more threat-power. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- (and co-founder (now retired) Censorware Project http://censorware.org) From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:54:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25687 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:54:40 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA25683 for ; Thu, 9 Mar 2000 08:54:39 -0500 Received: from bugbug (max01-24.suba.com [206.69.121.216]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id JAA09125 for ; Thu, 9 Mar 2000 09:07:41 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE - long! sorry! Date: Thu, 9 Mar 2000 09:06:44 -0600 Message-ID: <000001bf89d9$158f88e0$d87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000308212759.A1948@localhost> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > > On Wed, Mar 08, 2000 at 02:26:28PM -0800, Barron, Austin wrote: > > just a quick point, but likening cable t DVDs is apples and > highlighters. > > cable is a different medium, where access control is the only > way to protect > > a data stream that can be split. it's a live, continuing > service that isn't > > embodied in a tangible medium -- the access control law here is > really just > > a federal theft of services law. > > I re-read what I wrote, and in the context of the one message, the > meaning isn't clear enough. > > Apples and highlighters is the point. In the past Congress has in > fact passed laws controlling access to expressive material. But only > in the context of commerce, never (never = so far determined on this > list) in the context of copyright. Apples and highlighters is exactly the point, I concur. > > It's an argument that access controls are really a commerce power > issue, and that Congress is trying to pretend that the Copyclause > doesn't exist. If access is really commerce clause and not copyright > clause, then impact on the First Amendment will be judged by strict > scrutiny. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 08:59:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA26487 for dvd-discuss-outgoing; Thu, 9 Mar 2000 08:59:17 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA26438 for ; Thu, 9 Mar 2000 08:59:15 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id IAA32430 for ; Thu, 9 Mar 2000 08:14:58 -0600 Date: Thu, 9 Mar 2000 08:14:58 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! In-Reply-To: <20000308224137.A1102@arh1176.urh.uiuc.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > personal use for example. I can consider the cable subscription as having two > parts that I am paying for: one the actual broadcasts that come down the wire. > The other part is the service of delivering those broadcasts. I could consider > the cable subscription as a contract to provide me with television shows. I > could theoretically record every show on every channel. This would be a lot > like keeping every morning newspaper I have delivered, only that the cable > broadcast comes all the time, not just once a day. It would be clear theft of > service if I tapped into their line at the street (where they own it) but in my > house, their service is done and the content is mine to do what I choose with > (within the limits of normal copyright of course). A good point! The big concern that the MPAA has is the notion of perfect digital copies being easy to make and distribute. What happens when your cable or satellite provider is broadcasting perfect digital copies of your favorite Sopranos episodes? Are you not allowed to record them? How would this be any different than duplicating a DVD? As the availability of high quality digital broadcasts and cheap digital recording devices and media increase, there is a threat that we will all lose the right to record or copy anything. What happens when your cable company doesn't want you to record a show and implements a CSS like protection of the cable data streams? What happens if no norweigans are able to crack that protection? Does your right to record, established in case law many years ago, cease to exist? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:02:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA27865 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:02:51 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA27862 for ; Thu, 9 Mar 2000 09:02:50 -0500 Received: from 216-164-138-243.s243.tnt5.lnhva.md.dialup.rcn.com ([216.164.138.243]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12T4ex-0002MB-00 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 10:15:32 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <4.3.0.20000309091400.01c45f00@pop.webcom.com> References: <4.3.0.20000309091400.01c45f00@pop.webcom.com> Date: Thu, 9 Mar 2000 10:15:26 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >At 08:40 3/9/2000 -0500, Joshua Daub wrote, quoting me: >>>Joshua, you sound very sure of yourself. Perhaps you'd like to be a test >>>case? Feel free to grab the list mentioned at >>>(http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it >>>online, notify the company about what you've done, and let us know what >>>happens. :) >> >>That would be foolish of me. If a court found that the list was >>copyright protected, I would be liable under the DMCA. > >Exactly. In other words, you're pretty sure that your previous >argument of "no-copyright" holds no water. > No, it simply means that the risks of liability are too great to enter into lawsuits on a whim. A censorware copyright infringement lawsuit is likely to be expensive, especially if the district court erroneously upholds a claim of infringement. Such a judgment would most likely not survive appeal, but the role of martyr is not to be taken lightly. If I was to post such information, I would post it along with a critique. That way, my lawyers could present a two pronged defense. 1) Lists aren't subject to copyright 2)Even if they were, the use is noncommercial and educational.The use would probability fail the "relationship to the work as a whole" test, though. I don't know if the market effects test is relevant, since the whole purpose of posting would be to reduce demand for censorware. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:10:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA29065 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:10:48 -0500 Received: from hotmail.com (law2-f113.hotmail.com [216.32.181.113]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA29061 for ; Thu, 9 Mar 2000 09:10:46 -0500 Received: (qmail 44303 invoked by uid 0); 9 Mar 2000 15:23:21 -0000 Message-ID: <20000309152321.44302.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 07:23:21 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 10:23:21 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Declan McCullagh >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA >Date: Thu, 09 Mar 2000 09:15:59 -0500 > >At 08:40 3/9/2000 -0500, Joshua Daub wrote, quoting me: >>>Joshua, you sound very sure of yourself. Perhaps you'd like to be a test >>>case? Feel free to grab the list mentioned at >>>(http://news.cnet.com/news/0-1005-200-1567022.html), decode it, post it >>>online, notify the company about what you've done, and let us know what >>>happens. :) >> >>That would be foolish of me. If a court found that the list was copyright >>protected, I would be liable under the DMCA. > >Exactly. In other words, you're pretty sure that your previous argument of >"no-copyright" holds no water. > >-Declan > Please spare me your revolutionary fervor. Just because I don't wish to put myself and my career on the line for this issue in no way reflects on the strengths of my argument. I am merely playing devil's advocate to the many arguments on this list which do not bear any relation to the legal issues involved. The closer an anology is to the facts at issue, the stronger it is. It makes no sense to use an analogy that may be so easily distinguished. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:15:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30109 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:15:45 -0500 Received: from dial150.roadrunner.com (dial150.cybermesa.com [209.12.75.150]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA30103 for ; Thu, 9 Mar 2000 09:15:41 -0500 Received: (from paul@localhost) by dial150.roadrunner.com (8.8.7/8.8.7) id IAA04218 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 08:32:04 -0700 Date: Thu, 9 Mar 2000 08:32:03 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000309083203.A4209@localhost> References: <20000308212759.A1948@localhost> <001b01bf89d7$591cd920$db7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <001b01bf89d7$591cd920$db7945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Mar 09, 2000 at 08:54:19AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 08:54:19AM -0600, sparky wrote: > Again, we could argue that fair use applies *because* DVDs are tangible > media, and it is precisely this sort of work for which fair use is allowed. > Show that DeCSS, though access control circumvention, only circumvents on > media (not on service), AND that the access control restricts normal fair > use practices (list em off: right to copy (backup), right to copy in a > different format, isn't there a right to reverse engineer as long as it's > not an infringing use - and "access" is not included as one of the explicit > reserved rights for copyright holders in 17 USC), and you have a pretty > clear indication that DeCSS can be used in non-infringing ways. Because of > this, there can be no substance to the trafficking charge. The legal point of no return for the copyholder should be "first sale". The legal point beyond which the public should not be allowed to go is past the copyholder's right-not-to-publish (~ right to first publication). These are established principles, that don't require introducing a "new" legal criterion. Fair use is defined in the statutory sense in 17 USC 107 -> 119 (120?). Access is not an explicit part of statutory fair use because in the context of copyright, it is new. (There are also issues of what the bill's authors were after --- we guess about that from the text of the law and the Congressional record --- but we don't know for _certain_ where they thought they were going. There is too much stuff in the law that is contradictory for me to believe that they really understood what they were doing.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:16:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30184 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:16:08 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA30179 for ; Thu, 9 Mar 2000 09:16:06 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id IAA00379 for ; Thu, 9 Mar 2000 08:31:49 -0600 Date: Thu, 9 Mar 2000 08:31:49 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Legal issues #3 In-Reply-To: <38cc438d.55428848@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > The defendants were found guilty of commercially distributing a chip for > decoding VideoCipher II satellite TV. They claimed a fair use exemption, > but were shot down because their "fair use" was not shown to be for some > "legitimate, fair and reasonable purpose." I think this brings up an important distinction. When a satellite broadcaster sends a signal, who owns that signal? My presumption would be that they do since they are sending it over frequencies licensed to them by the government. Now, as a provider of a service, they agree to sell you the right to decode that signal and view it for a price. You still don't own the signal as it moves through the air, but once it has been decoded the signal is yours to do with within the limitations of copyright law. Now, when we are talking about DVD's, you are actually purchasing the medium of transmission (the disc). You aren't bound by any licenses or terms of service, you own that disc and you should be able to do with that disc as you please within the bounds of copyright law. Of course the problem we run into is that the "bounds of copyright law" as defined in the DMCA are criminalizing the act of copying (technically the act of circumventing copy controls, but they are one in the same if you must cirumvent the control to make the copy). ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:21:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30728 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:21:56 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA30725 for ; Thu, 9 Mar 2000 09:21:55 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id IAA00532 for ; Thu, 9 Mar 2000 08:37:37 -0600 Date: Thu, 9 Mar 2000 08:37:37 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power In-Reply-To: <20000309145639.42029.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Actually, you are misinformed here. In part, the DMCA was passed to conform > the United States copyright law to an interntational intellectual copyright > treaty under WIPO (World Intellectual Property Organization). If I remember > correctly, the European countries were the ones who pushed for > "anti-circumvention" provisions in the treaty. Admittedly, I do not know > whether Norway in particular was a signatory to the treaty, nor what > Norway's intellectual property law is. If I recall correctly, the provisions for anti-cirumvention systems under WIPO are much more reasonable than those under the DMCA. Basically, the process, as I understand it, was that the congress was putting together legislation to bring copyright law in compliance with WIPO. Then, the media corps got involved and made the rules much nastier to consumers than they were before. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:25:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30909 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:25:22 -0500 Received: from MIT.EDU (SOUTH-STATION-ANNEX.MIT.EDU [18.72.1.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA30906 for ; Thu, 9 Mar 2000 09:25:21 -0500 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA14442; Thu, 9 Mar 00 10:38:25 EST Received: from melbourne-city-street.MIT.EDU (MELBOURNE-CITY-STREET.MIT.EDU [18.69.0.45]) by grand-central-station.MIT.EDU (8.9.2/8.9.2) with ESMTP id KAA28464 for ; Thu, 9 Mar 2000 10:38:26 -0500 (EST) Received: from oobleck.mit.edu (OOBLECK.MIT.EDU [18.54.0.122]) by melbourne-city-street.MIT.EDU (8.9.3/8.9.2) with ESMTP id KAA11882 for ; Thu, 9 Mar 2000 10:38:26 -0500 (EST) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id KAA06505; Thu, 9 Mar 2000 10:38:26 -0500 (EST) Date: Thu, 9 Mar 2000 10:38:26 -0500 (EST) Message-Id: <200003091538.KAA06505@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Jeremy Erwin > If I was to post such information, I would post it along with a > critique. That way, my lawyers could present a two pronged defense. > 1) Lists aren't subject to copyright > 2)Even if they were, the use is noncommercial and educational. The problem is that the second prong is likely irrelevant under the DMCA. That's the catch, the DMCA *effectively* gets rid of "fair use" in certain contexts. Judge Kaplan was *very* explicit here: http://cryptome.org/dvd-mpaa-3-mo.htm e. Fair use Finally, defendants claim that they are engaged in a fair use under Section 107 of the Copyright Act. They are mistaken. Section 107 of the Act provides in critical part that certain uses of copyrighted works that otherwise would be wrongful are "not . . . infringement[s] of copyright.''28 Defendants, however, are not here sued for copyright infringement. They are sued for offering to the public and providing technology primarily designed to circumvent technological measures that control access to copyrighted works and otherwise violating Section 1201(a)(2) of the Act. If Congress had ^^^^^^^^^^^^^^^ meant the fair use defense to apply to such actions, it would have ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ said so. ^^^^^^^ --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- (and co-founder (now retired) Censorware Project http://censorware.org) From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:26:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA31127 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:26:49 -0500 Received: from rz03.FH-Karlsruhe.DE (rz03.RZ-FDDI.FH-Karlsruhe.DE [193.196.125.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA31123 for ; Thu, 9 Mar 2000 09:26:47 -0500 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12T52W-000LNG-00 for dvd-discuss@eon.law.harvard.edu; Thu, 09 Mar 2000 16:39:52 +0100 Subject: Re: [dvd-discuss] ACCESS as USE To: dvd-discuss@eon.law.harvard.edu Date: Thu, 9 Mar 100 16:39:51 +0100 (CET) In-Reply-To: <20000309083203.A4209@localhost> from "Paul Fenimore" at Mar 9, 0 08:32:03 am From: Sham Gardner X-Mailer: ELM [version 2.4 PL25] MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > The legal point of no return for the copyholder should be "first sale". > > The legal point beyond which the public should not be allowed to go is > past the copyholder's right-not-to-publish (~ right to first publication). does "right to first publication" apply globally? If not it could be said that regional coding is acceptable since it protects the copyriight holder's right to first publication in a specific region. Sham From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:28:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA31738 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:28:59 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA31735 for ; Thu, 9 Mar 2000 09:28:58 -0500 Received: (qmail 14743 invoked by uid 502); 9 Mar 2000 15:43:59 -0000 Date: Thu, 9 Mar 2000 10:43:59 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000309104359.A14713@linuxpower.org> References: <20000308225258.D12621@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 09, 2000 at 04:18:39PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 04:18:39PM -0800, Kent Nguyen wrote: > > Hey Rob, Hey Kent! > > "the facts". Please define clearly the facts in this case. We know for > the fact that DeCSS is created to play DVD on Linux. We know for the fact > that people pirate snippets of DVD movie using DeCSS. Facts are there to > make the case look better to argue. They are no substitute to stop people > from "thinking" which is what this case should be about. I know you're a new poster, so I'm going to try and be nice here. No, we don't know for a fact that DeCSS was created to play DVD on Linux. All we know is that after quite a bit of hassling, M.O.R.E. handed the source code to DeCSS over to the LiViD group. We know this because we have evidence. No, we don't know for a fact that people are pirating snippets, because no one has offered evidence showing this. This is pure conjecture at this point. If you would be so kind as to provide evidence for this "fact", then we'll discuss it. I understand if you've never really dealt with facts before, but for the purposes of arguing (and without wanting to turn this into a philosophical debate), let me provide my definition for "fact", as I'm using it here: "A statement of reality, supported by evidence that isn't manipulated, falsified or fabricated." I don't necessarily see facts as being axiomatic except in an ideal sense; there may in fact be axiomatic facts, but I haven't found them yet. I'm actually trying to define the facts in this case in the Frequently Asked Questions list (http://www.iag.net/~aleris/dvdfaq.html). I'm not saying that we have a lock on them yet; a lot of what's in the FAQ is probably wrong. But when new evidence surfaces, someone invariably sends it my way, and invariably it replaces assumptions and conjectures made without evidence. This is called "trying to get our shit straight". > We can live with our integrity, respect, and honesty. In order to be > understood we must share. One of the reason why I'm here. I want to > share you my views, my integrity, my respect, and my honesty. And as long as "your integrity, your respect and your honesty" involves actually being honest, truthful, factual and respectful, we'll get along just fine. If you come into this forum and start throwing around bullshit, you're going to get called on it - if not by me, then by any number of people here who have no qualms about responding forcefully to nonsense. And not everyone here is as nice about it as I am. :) > Propaganda > define by www.dictionary.com - "the systematic propagation of a doctrine > or cause or of information reflecting the views and interests of those > people advocating such a doctrine or cause." So yah propaganda is > good. This mailing list is a form of propaganda. My website > www.newyen.com/dvd is also propaganda. It takes propaganda to propagate > "integrity, respect, and honesty for the facts". Once again, without wanting to start a philosophical debate here, this is utter and absolute bullshit. How much do you know about the scientific establishments in ideological regimes? Soviet Russia and Nazi Germany come to mind. Did you know that in Germany in the 1930's, relativity was considered "Jewish Science"? If you go back and read the histories of these two societies, you'll see a pattern over and over again: scientific method being corrupted to serve an ideology. When this happens, the truth becomes negotiable and often is discarded because it is not "ideologically pure". This sort of nonsense (i.e. what Rand called "mysticism", not that I'm a Rand fan) is why ideological empires don't endure - at some point the ideology becomes more important than what is really going on. That's when Germany invades Russia in the winter, without cold gear. And, for the record, this mailing list was *not* put into place to advance a doctrine or ideology. It was not to convince people of the rightness of our cause. If you want that, you can go to Slashdot. The purpose of this mailing list is to leverage the collective eyes, ears, skills and time of the open source community in order to provide the EFF with intelligence information in order that they can build quality arguments. In order to fulfill that task, we need to keep "doctrine advancement" out of it. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:30:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA32102 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:30:42 -0500 Received: from mtiwmhc01.worldnet.att.net (mtiwmhc01.worldnet.att.net [204.127.131.36]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA32099 for ; Thu, 9 Mar 2000 09:30:41 -0500 Received: from alaptop.hotwired.com ([12.78.116.156]) by mtiwmhc01.worldnet.att.net (InterMail v03.02.07.07 118-134) with ESMTP id <20000309154315.FKED21298@alaptop.hotwired.com> for ; Thu, 9 Mar 2000 15:43:15 +0000 Message-Id: <4.3.0.20000309103846.023e56d0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 09 Mar 2000 10:41:27 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309152321.44302.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Now this is amusing. I never pictured myself a revolutionary, down-with-the-capitalist-pigs type before, and certainly never a feverish one. Hmm. Anyway, it's one thing to play devil's advocate, sure, it's another to mouth off on a mailing list in a way that could prompt others to try something of dubious legality that you're unwilling to do yourself. -Declan At 10:23 3/9/2000 -0500, Joshua Daub wrote, quoting me: Exactly. In other words, you're pretty sure that your previous argument of >>"no-copyright" holds no water. >>Please spare me your revolutionary fervor. Just because I don't wish to >>put myself and my career on the line for this issue in no way reflects on >>the strengths of my argument. I am merely playing devil's advocate to >>the many arguments on this list which do not bear any relation to the >>legal issues involved. The closer an anology is to the facts at issue, >>the stronger it is. It makes no sense to use an analogy that may be so >>easily distinguished. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:37:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA00794 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:37:07 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA00763 for ; Thu, 9 Mar 2000 09:37:05 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id IAA01447 for ; Thu, 9 Mar 2000 08:52:48 -0600 Date: Thu, 9 Mar 2000 08:52:48 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <200003091538.KAA06505@oobleck.mit.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Section 107 of the Act provides in critical part that certain uses of > copyrighted works that otherwise would be wrongful are "not > . . . infringement[s] of copyright.''28 Defendants, however, are not > here sued for copyright infringement. They are sued for offering to > the public and providing technology primarily designed to circumvent > technological measures that control access to copyrighted works and > otherwise violating Section 1201(a)(2) of the Act. If Congress had > ^^^^^^^^^^^^^^^ > meant the fair use defense to apply to such actions, it would have > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > said so. > ^^^^^^^ Hmmmm... If this law does not provide an exemption for fair use, then it has de facto eliminated fair use from copyright law. All any media producer has to do is develop a minimalist copy protection measure, and suddenly I can remove all fair use rights for the media. They have given the right to regulate fair use to the producers of media. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:39:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01693 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:39:53 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01676 for ; Thu, 9 Mar 2000 09:39:52 -0500 Received: from massa-intermedia.mit.edu (massa-intermedia [18.42.0.61]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with SMTP id KAA18158 for ; Thu, 9 Mar 2000 10:52:58 -0500 (EST) Received: by massa-intermedia.mit.edu (4.1/AI-4.10) id AA03800; Thu, 9 Mar 00 10:52:56 EST Date: Thu, 9 Mar 00 10:52:56 EST Message-Id: <10003091552.AA03800@massa-intermedia.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <200003090132.UAA05639@oobleck.mit.edu> References: <200003090132.UAA05639@oobleck.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth Finkelstein writes: > > "Robert S. Thau" > > Wouldn't this require the plaintiffs to demonstrate that the > > arrangement has some real significance? > > I think the key word above is "selection". Again, I am not a > lawyer, but my worry is the element of manufacturer's choice would > prove to be enough to trigger copyright protection. Certainly that's > what the plaintiff will likely argue. So, the argument would be that their selection involves creative judgment above and beyond the mere effort of creating the list ("sweat of the brow"). Got it. I guess one point of attack then might be to ask whether the censorware authors actually claim to be exercising some sort of critical judgment, as opposed to merely reporting objective facts about whether a particular site contains nudity, sexual content, violence, and so forth. But we're drifting a bit away from the DVD case here... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:40:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02373 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:40:35 -0500 Received: from hotmail.com (law2-f121.hotmail.com [216.32.181.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA02370 for ; Thu, 9 Mar 2000 09:40:34 -0500 Received: (qmail 36845 invoked by uid 0); 9 Mar 2000 15:53:07 -0000 Message-ID: <20000309155307.36844.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 07:53:07 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] ACCESS as USE Date: Thu, 09 Mar 2000 10:53:07 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arguments/observations involving access and fair use. These are not thoroughly researched and do not contain complete citations to legal authority, but should be fairly accurate. 1. "Use" in fair use refers to the exercise of an exclusive right granted the copyright holder (hereafter "holder") under section 106. 2. This is so because: (A) fair use only arises in the context of an infringing use; and (B) if a "use" did not exercise an exclusive right granted a holder under 106, then there is no infringement. 3. Access is not an exclusive right granted under 106. 4. Therefore, any access which does not otherwise exercise an exclusive right is not a use. 4. Therefore, fair use is not a consideration of in the question of access. 5. To argue that access is allowed under fair use is to argue that access is an exclusive right. One conclusion: argue that Chapter 1200 grants copyright holders an exclusive right (access control) not granted under 106 (exclusive rights). This may or may not have been the legislative intent to 1200. To me arguing that fair use protects access is elliptical at best, suicide at worst. Even assuming access is a use that may be protected by the fair use doctrine is no guarantee that the use is fair (ie access may be a use without being fair). One need analyze access in light of the four factors listed under section 107 fair use. An argument that mere access is a fair use suffers from such analysis: (note use=access for this purpose) a. the use is not transformative (ie adds nothing to the original), b. the use incorporates qaulitatively all of the original, c. the impact on the market is arguably great (I know there are strong arguments against this factor) Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 09:48:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03512 for dvd-discuss-outgoing; Thu, 9 Mar 2000 09:48:13 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA03509 for ; Thu, 9 Mar 2000 09:48:12 -0500 Received: (qmail 14809 invoked by uid 502); 9 Mar 2000 16:03:18 -0000 Date: Thu, 9 Mar 2000 11:03:18 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000309110318.B14713@linuxpower.org> References: <20000308225258.D12621@linuxpower.org> <20000309104359.A14713@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000309104359.A14713@linuxpower.org>; from greslin@linuxpower.org on Thu, Mar 09, 2000 at 10:43:59AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 10:43:59AM -0500, greslin@linuxpower.org wrote: > > I understand if you've never really dealt with facts before, but for the > purposes of arguing (and without wanting to turn this into a philosophical > debate), let me provide my definition for "fact", as I'm using it here: > > "A statement of reality, supported by evidence that isn't manipulated, > falsified or fabricated." > > I don't necessarily see facts as being axiomatic except in an ideal sense; > there may in fact be axiomatic facts, but I haven't found them yet. "there may in fact be axiomatic facts".. that's gotta be the most bizarre thing I've written in weeks. A more accurate statement would be "there may exist true axiomatic facts, but I haven't found them yet". Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 10:09:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA08477 for dvd-discuss-outgoing; Thu, 9 Mar 2000 10:09:28 -0500 Received: from gwillbe.circ.gwu.edu (smtp.circ.gwu.edu [128.164.127.222]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA08448 for ; Thu, 9 Mar 2000 10:09:27 -0500 Received: from gwis2.circ.gwu.edu (gwis2.circ.gwu.edu [128.164.127.252]) by gwillbe.circ.gwu.edu (8.9.3/8.9.3) with ESMTP id LAA10001 for ; Thu, 9 Mar 2000 11:22:24 -0500 (EST) Received: from winuser ([128.164.174.226]) by gwis2.circ.gwu.edu (8.9.3/8.9.3) with SMTP id LAA24390 for ; Thu, 9 Mar 2000 11:31:14 -0500 (EST) Message-ID: <000b01bf89e3$62d6f7a0$e2aea480@winuser> From: "GW Law" To: References: <200003091538.KAA06505@oobleck.mit.edu> Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 9 Mar 2000 11:20:17 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Lists are subject to copyright, so long as they involve a "modicum of creativity." A list of sites to censor is copyrightable because it involves some creativity on the part of the censor; it's not like a list of phone numbers listed alphabetically. See Feist. I don't like that result--but that is the result, like it or not. IANAL -Doug From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 10:21:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA13362 for dvd-discuss-outgoing; Thu, 9 Mar 2000 10:21:14 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA13359 for ; Thu, 9 Mar 2000 10:21:13 -0500 Received: from sympatico.ca ([206.172.235.178]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000309163156.VFTO3031.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Thu, 9 Mar 2000 11:31:56 -0500 Message-ID: <38C7D39F.500837D4@sympatico.ca> Date: Thu, 09 Mar 2000 11:38:55 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> <38C72E68.36E737CF@swlaw.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ammon Dorny wrote: > > Hello all, > > Rob, excellent point and well put. If I understand the whole premise to > this forum, more eyeballs a better argument makes. There is a > noticeable lack of emphasis on help obscuring, propagandizing, > distracting or anything else that clouds the issues. It only takes one > or two people to achieve that. > > I am a third year law student trying to catch up on the archive > discussion after being alarmed by todays Wired article. > > Ammon Dorny > http://home.earthlink.net/~adorny/ Hi Ammon - Just to note: it's really encouraging to have you here. IMHO, we need more law students on this list, so PLEASE don't go away. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 10:32:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15073 for dvd-discuss-outgoing; Thu, 9 Mar 2000 10:32:43 -0500 Received: from hotmail.com (law2-f10.hotmail.com [216.32.181.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA15070 for ; Thu, 9 Mar 2000 10:32:39 -0500 Received: (qmail 6303 invoked by uid 0); 9 Mar 2000 16:45:06 -0000 Message-ID: <20000309164506.6302.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 08:45:06 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 11:45:06 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Steve Stearns >Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA >Hmmmm... If this law does not provide an exemption for fair use, then it >has de facto eliminated fair use from copyright law. All any media >producer has to do is develop a minimalist copy protection measure, and >suddenly I can remove all fair use rights for the media. They have given >the right to regulate fair use to the producers of media. > To a certain extent yes. There is no question that circumventing access control is not fair use (under the law). However, one could still access the underlying work in a manner that constitutes fair use. There is a definite distinction between fair use and access. For example: Assume I am a multimedia artist. I include an image from a DVD movie in a multimedia exhibit without circumventing the access control. If under the factors in section 107 this is a fair use (because it is transformative, it takes only a qualitatively small portion of the original, it has no effect on the market for the original), nothing in the DMCA effects this determination that this is a fair use. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 10:44:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15921 for dvd-discuss-outgoing; Thu, 9 Mar 2000 10:44:15 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA15917 for ; Thu, 9 Mar 2000 10:44:14 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA04089 for ; Thu, 9 Mar 2000 09:59:57 -0600 Date: Thu, 9 Mar 2000 09:59:57 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309164506.6302.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > To a certain extent yes. There is no question that circumventing access > control is not fair use (under the law). However, one could still access > the underlying work in a manner that constitutes fair use. There is a > definite distinction between fair use and access. For example: So basically you are saying that as long as their is some means by which I can make use of a DVD in a fair use context, then the access control measure is not de facto eliminating fair use. If that is so, then here's a question for you then: what is the legal justification for allowing me to record a television show for viewing in my home? I know that in case law it was established that you could do this and it was acceptable, but do you know off hand what the legal justification used by the court was? If by chance it was fair use, then that may set a legal precedent that non-transformative duplication of an entire work is acceptable and protected under fair use. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 10:49:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16095 for dvd-discuss-outgoing; Thu, 9 Mar 2000 10:49:42 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA16092 for ; Thu, 9 Mar 2000 10:49:41 -0500 Received: from 216-164-129-48.s302.tnt1.lnhva.md.dialup.rcn.com ([216.164.129.48]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12T6KI-0001Ou-00 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 12:02:18 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Thu, 9 Mar 2000 12:01:56 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > Section 107 of the Act provides in critical part that certain uses of > > copyrighted works that otherwise would be wrongful are "not > > . . . infringement[s] of copyright.''28 Defendants, however, are not > > here sued for copyright infringement. They are sued for offering to > > the public and providing technology primarily designed to circumvent > > technological measures that control access to copyrighted works and > > > otherwise violating Section 1201(a)(2) of the Act. If Congress had > > ^^^^^^^^^^^^^^^ > > meant the fair use defense to apply to such actions, it would have > > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > said so. > > ^^^^^^^ > >Hmmmm... If this law does not provide an exemption for fair use, then it >has de facto eliminated fair use from copyright law. All any media >producer has to do is develop a minimalist copy protection measure, and >suddenly I can remove all fair use rights for the media. They have given >the right to regulate fair use to the producers of media. Not exactly. One could build an access device, based on one's own reverse engineering, and then publish that portion of the data which would come under a fair use exemption. Distribution of the access device would be illegal, of course. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 11:02:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18810 for dvd-discuss-outgoing; Thu, 9 Mar 2000 11:02:20 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA18807 for ; Thu, 9 Mar 2000 11:02:18 -0500 Received: (qmail 32118 invoked from network); 9 Mar 2000 17:11:23 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 9 Mar 2000 17:11:23 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id JAA05369; Thu, 9 Mar 2000 09:15:43 -0800 Date: Thu, 9 Mar 2000 09:15:43 -0800 Message-Id: <200003091715.JAA05369@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: cfug-talk@cfug.org Subject: [dvd-discuss] Reverse Engineering 101:Qbert Re: cfug-talk; [off-topic]: Sourcing Q*bert Cc: dvd-discuss@eon.law.harvard.edu Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Lou Rinaldi wrote: >This guy disassembled the original arcade Qbert 8086 rom image and hand >converted it into 'C' & z80 so he ended up with a Gameboy port that plays >identically to the arcade. His description of the process makes for a good >read. > http://www.1000klub.com/Qbert/ > >- Lou Hmmm. Interesting. >- >Subscription Management - http://www.cfug.org/talksub.html Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:12:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31273 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:12:30 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31270 for ; Thu, 9 Mar 2000 12:12:27 -0500 Received: from [38.32.79.202] (helo=ip202.bedford9.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12T7cp-0003Fu-00; Thu, 9 Mar 2000 13:25:32 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Legal issues #3 Date: Thu, 09 Mar 2000 18:24:31 GMT Message-ID: <38c8eb3e.15822391@mail.tiac.net> References: In-Reply-To: X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA31271 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000 08:31:49 -0600 (CST), Steve Stearns wrote: >Now, when we are talking about DVD's, you are actually purchasing the >medium of transmission (the disc). You aren't bound by any licenses or >terms of service, you own that disc and you should be able to do with that >disc as you please within the bounds of copyright law. > >Of course the problem we run into is that the "bounds of copyright law" as >defined in the DMCA are criminalizing the act of copying (technically the >act of circumventing copy controls, but they are one in the same if you >must cirumvent the control to make the copy). While looking for examples of fair use, I've been thinking about how the multiple layers of copy controls add up to a "virtual device" that undermines copyright. Certainly Macrovision interferes with the type of copying allowed under Betamax--especially when an analog tape of a DVD minus the interactive program elements is involved. In this light, DeCSS might be seen as a [perhaps misdirected] tool aimed at restoring rights given under Betamax. Certainly the movie companies should have to explain how they intend to technologically restore copyrights at the end of the term as well as enable non-commercial and educational fair use now. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:15:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31684 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:15:11 -0500 Received: from hotmail.com (law2-f74.hotmail.com [216.32.181.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA31681 for ; Thu, 9 Mar 2000 12:15:10 -0500 Received: (qmail 17724 invoked by uid 0); 9 Mar 2000 18:27:40 -0000 Message-ID: <20000309182740.17723.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 10:27:40 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 13:27:40 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >>To a certain extent yes. There is no question that circumventing >>access >>control is not fair use (under the law). However, one could >>still >>access the underlying work in a manner that constitutes fair >>use. There >>is a definite distinction between fair use and access. > >So basically you are saying that as long as their is some means by >which I >can make use of a DVD in a fair use context, then the access >control >measure is not de facto eliminating fair use. All I am saying is: 1. It is possible to make a fair use without circumventing access control. 2. Therefore, 1200 does not eliminate all fair use. 3. My real point is that under the current law, fair use is not an issue under 1200. >If that is so, then here's a question for you then: what is the >legal >justification for allowing me to record a television show for >viewing in >my home? I know that in case law it was established that >you could do this >and it was acceptable, but do you know off hand >what the legal >justification used by the court was? The case would be Sony v. Universal Studios (the Betamax case) in the early 80s. I am not sure of the exact legal analysis used, but I recall that it was a complex opinion and there may have been a plurality only. >If by chance it was fair use, then that may set a legal >precedent that non-transformative duplication of an entire work is >acceptable and protected under fair use. I would have to examine the fair use analysis undertaken in Sony. In a very throrough fair use analysis case, see Campbell v. Rose-Acuff Music (the 2Live Crew case), the Supreme Court relied heavily on the fact that the use was transformative. However, I do recall several even more recent fair use cases in the circuit courts involving fair use of photocopying for educational purposes. A photocopying fair use case might provide some authority for a non-transformative duplication of an entire work. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:29:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02612 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:29:46 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02580 for ; Thu, 9 Mar 2000 12:29:45 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA05852 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 12:42:41 -0600 Date: Thu, 9 Mar 2000 12:42:41 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] region locking argument Message-ID: <20000309124241.A5833@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just saw a really good argument against region locking on Slashdot, of all places: us: With region codes, The MPAA is just trying to enforce artificial pricing schemes! them: But we haven't even released [new movie] in Europe yet! It's not fair that people could import the DVD; nobody'd ever go to the theatre! us: Then why are you region locking movies released TEN YEARS AGO ? I'm not sure if region locking will ever make it into a trial, but it's kind of hard to beat that one. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:30:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02743 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:30:29 -0500 Received: from smtp13.bellglobal.com (smtp13.bellglobal.com [204.101.251.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02740 for ; Thu, 9 Mar 2000 12:30:28 -0500 Received: from sympatico.ca (ppp5819.on.bellglobal.com [206.172.198.131]) by smtp13.bellglobal.com (8.8.5/8.8.5) with ESMTP id NAA24207 for ; Thu, 9 Mar 2000 13:46:37 -0500 (EST) Message-ID: <38C7F277.17C22E1C@sympatico.ca> Date: Thu, 09 Mar 2000 13:50:31 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: <20000309182740.17723.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > All I am saying is: > 1. It is possible to make a fair use without circumventing access control. > > 2. Therefore, 1200 does not eliminate all fair use. > > 3. My real point is that under the current law, fair use is not an issue > under 1200. Just too keep people's heads straight, could we ask that people use "1201" when they're referring to 1201, rather than "1200"? Thanks. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:36:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03360 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:36:29 -0500 Received: from dial155.roadrunner.com (dial155.cybermesa.com [209.12.75.155]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA03357 for ; Thu, 9 Mar 2000 12:36:25 -0500 Received: (from paul@localhost) by dial155.roadrunner.com (8.8.7/8.8.7) id LAA05189 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 11:52:54 -0700 Date: Thu, 9 Mar 2000 11:52:53 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000309115252.A4847@localhost> References: <20000309083203.A4209@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from gara0013@fh-karlsruhe.de on Thu, Mar 09, 2000 at 04:39:51PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 04:39:51PM +0100, Sham Gardner wrote: > > The legal point of no return for the copyholder should be "first sale". > > > > The legal point beyond which the public should not be allowed to go is > > past the copyholder's right-not-to-publish (~ right to first publication). > > does "right to first publication" apply globally? If not it could be said > that regional coding is acceptable since it protects the copyriight holder's > right to first publication in a specific region. My understanding is that in the U.S., the right not to publish is a fence around the author or copyholder that protects their privacy and related rights (it keeps the public on the outside.) It is _not_ a fence around the public that keeps them inside. It has to be this way, because the right-to-first-pub attaches to the works a person holds. Once the author/copyholder opens the gate and throws the books outside, that's it. The work has been published. She can't go out, pick it up, and bring it back inside. From 17 USC 101: ''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. So, as a statutory matter, there doesn't seem to be any difference between publication inside the U.S. and outside. There may still be subtlety lurking here because parts of Title 17 may treat copyrighted material differently depending on whether or not it is a "U.S. work". I don't see how that would impact what I'm saying, unless there is something lurking in one of the treaties, which I haven't read yet. The domestic/overseas issue is at least partly a constitutional one. If an author could forbid the _importation_ of expressive material into the United States, this would lead to a direct conflict with Meyer v. Nebraska --- the right to learn a foreign language in a private school. My understanding of this decision is that statutory protection of region codes on material _imported_ into the United States would be unconstitutional if one can show that it restricts the right to learn a foreign language. I think this is a plausible avenue of attack. The issue of export controls in another country is obviously outside the scope of U.S. statute and constitutional rights. I don't know where U.S export controls would land. I don't think Meyer would help in that case. The import issue also connects with first-sale. Bryan Taylor posted Quality King v. L'Anza: Date: Sun, 27 Feb 2000 11:44:05 -0800 (PST) Message-ID: <20000227194405.22337.qmail@web504.mail.yahoo.com> U.S. Supreme Court (1998) No. 96-1470 Quality King Distributors, Inc. v. L'Anza Research International, Inc. http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=96-1470 > The district court held for the copyright holder, as did the 9th > circuit, but the Supreme Court unanimously sided with Quality King. In > the _holding_ it wrote "The whole point of the first sale doctrine is > that once the copyright owner places a copyrighted item in the stream > of commerce by selling it, he has exhausted his exclusive statutory > right to control its distribution.". > > This is very significant because 602(a) uses essentially the same > language 'without the authority of the owner of copyright' as is used > in 1201(a)(3)(A). The point is that the MPAA must show affirmatively > that this is a right of copyright that the have retained. > > The exclusive rights of the copyright holder are limited and enumerated > in 106(1-6). No such right to 'determine access control' is listed, but > it might be infered from (5) which gives copyright holders control over > public display of their work. However, this is distinguished from > private display. First sale in 109(c) does pass on a limited public > performance right for motion pictures 'to viewers present at the place > where the copy is located.' It should easily follow that control over > private display is also given up at first sale. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:42:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04784 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:42:40 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04780 for ; Thu, 9 Mar 2000 12:42:38 -0500 Received: from [38.32.79.202] (helo=ip202.bedford9.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12T85n-0004LU-00; Thu, 9 Mar 2000 13:55:28 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 18:54:26 GMT Message-ID: <38cbf332.17858930@mail.tiac.net> References: <20000309182740.17723.qmail@hotmail.com> In-Reply-To: <20000309182740.17723.qmail@hotmail.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA04782 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 09 Mar 2000 13:27:40 EST, "Joshua Daub" wrote: >>So basically you are saying that as long as their is some means by >which I >>can make use of a DVD in a fair use context, then the access >control >>measure is not de facto eliminating fair use. > >All I am saying is: >1. It is possible to make a fair use without circumventing access control. But, with DVD, fair use is only enabled by a program that may or may not be included on the disc. (ie. navigation, rewind, pause, etc. might be disabled on any given title.) Wouldn't the lack of a standard and universal interface impact what can be considered fair use? >was transformative. However, I do recall several even more recent fair use >cases in the circuit courts involving fair use of photocopying for >educational purposes. A photocopying fair use case might provide some >authority for a non-transformative duplication of an entire work. If you can post the names of any of these under Legal issues #3 thread, perhaps some of us might be able to look them up for Robin's list (35 requested.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 12:55:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06904 for dvd-discuss-outgoing; Thu, 9 Mar 2000 12:55:03 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA06901 for ; Thu, 9 Mar 2000 12:55:01 -0500 Received: from [38.32.79.202] (helo=ip202.bedford9.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12T8I1-0004mr-00; Thu, 9 Mar 2000 14:08:05 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 19:07:02 GMT Message-ID: <38ccf5e7.18552145@mail.tiac.net> References: <20000309182740.17723.qmail@hotmail.com> <38cbf332.17858930@mail.tiac.net> In-Reply-To: <38cbf332.17858930@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA06902 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 09 Mar 2000 18:54:26 GMT, I wrote: >But, with DVD, fair use is only enabled by a program that may or may not >be included on the disc. (ie. navigation, rewind, pause, etc. might be >disabled on any given title.) Wouldn't the lack of a standard and universal >interface impact what can be considered fair use? There's an idea, how about releasing a public domain DVD that lacks program elements and actually _needs_ DeCSS? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 13:30:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11490 for dvd-discuss-outgoing; Thu, 9 Mar 2000 13:30:55 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA11464 for ; Thu, 9 Mar 2000 13:30:33 -0500 Received: (qmail 15696 invoked by uid 60001); 9 Mar 2000 19:43:23 -0000 Message-ID: <20000309194323.15695.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Thu, 09 Mar 2000 11:43:23 PST Date: Thu, 9 Mar 2000 11:43:23 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steve Stearns wrote: > > [...] Defendants, however, are not here sued for copyright > > infringement. They are sued for offering to the public and providing > > technology primarily designed to circumvent technological > > measures that control access to copyrighted works and > > otherwise violating Section 1201(a)(2) of the Act. If Congress > > had meant the fair use defense to apply to such actions, it would > > have said so. > > Hmmmm... If this law does not provide an exemption for fair use, > then it has de facto eliminated fair use from copyright law. All > any media producer has to do is develop a minimalist copy > protection measure, and suddenly I can remove all fair use rights > for the media. They have given the right to regulate fair use to the > producers of media. I don't think Kaplan's reasoning is sound for two reasons. First, he assumes that fair use defenses, like the copyright holder's rights, must be statutory. This plainly ignores the judicial history of fair use, which was a common law privilege and "judge-made" doctrine before Congress codified it into the US code. When Congress did this, it took notice of the fact that it was not creating fair use, but merely stating pre-existing law. I provided citation and quotation for the above in http://eon.law.harvard.edu/archive/dvd-discuss/msg01082.html , which cites the Supreme Court in Cambell V Acuff-Rose and Harper & Row V Nation Enterprises. The second objection is the First Amendment, and freedom of the press. The 2nd Circuit (Kaplan's circuit) has said several times that fair use balances first amendment issues with copyright powers. Even if the context changes from infringment to circumvention, the First Amendment must have some limitation on the new law. If there is no concept of "fair access", then it must be created to balance access circumvention laws against the first amendment. Here's citation to the 2nd Circuit Fair Use / First Amendment doctrine: http://eon.law.harvard.edu/archive/dvd-discuss/msg01189.html It is important to note that computer programs in object code format are considered 'literary works' under copyright law precisely because they embody expression deserving of protection. See: http://eon.law.harvard.edu/archive/dvd-discuss/msg01141.html __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 13:35:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11546 for dvd-discuss-outgoing; Thu, 9 Mar 2000 13:35:53 -0500 Received: from hotmail.com (law2-f208.hotmail.com [216.32.181.208]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA11541 for ; Thu, 9 Mar 2000 13:35:48 -0500 Received: (qmail 50285 invoked by uid 0); 9 Mar 2000 19:48:21 -0000 Message-ID: <20000309194821.50284.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 11:48:21 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 14:48:21 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >All I am saying is: > >1. It is possible to make a fair use without circumventing access >control. > > >But, with DVD, fair use is only enabled by a program that may or may not >be included on the disc. (ie. navigation, rewind, pause, etc. might be >disabled on any given title.) Wouldn't the lack of a standard and universal >interface impact what can be considered fair use? I have no idea what this means. What is "a program that may or may not be included on the disc?" Access control??? If you are saying that "fair use is only enabled by [access control]," I agree. But that is the converse of saying that access control eliminates or destroys fair use. At the most, access control "limits" a fair use to one that does not circumvent the access control. I say at the most, because under the actual law, fair use does not seem relevent to access control, because (repeat after me): 1. a suit under 17 U.S.C. § 1200 et. seq. is not a suit for copyright infringement, and 2. fair use is only a defense to copyright infringement. > >was transformative. However, I do recall several even more recent fair >use > >cases in the circuit courts involving fair use of photocopying for > >educational purposes. A photocopying fair use case might provide some > >authority for a non-transformative duplication of an entire work. > >If you can post the names of any of these under Legal issues #3 >thread, perhaps some of us might be able to look them up for >Robin's list (35 requested.) I can get the names of the cases when I check my old textbooks at home. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 13:56:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15436 for dvd-discuss-outgoing; Thu, 9 Mar 2000 13:56:37 -0500 Received: from tardis.offbeat.home (root@wintersprings-ubr-c3s1-174.cfl.rr.com [24.26.100.174]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15433 for ; Thu, 9 Mar 2000 13:56:35 -0500 Received: (from jlc@localhost) by tardis.offbeat.home (8.9.3/8.9.3) id PAA02546 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 15:08:45 -0500 Date: Thu, 9 Mar 2000 15:08:45 -0500 From: "John L. Chmielewski" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Message-ID: <20000309150845.A2537@tardis.offbeat.home> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wed, 8 Mar 2000 08:50:23 -0500 greslin@linuxpower.org wrote: >>--- Bryan Taylor wrote: >> Figuring out who has standing to sue when the authority is not defined >> in a meaningful way in the law is pretty difficult. At first I thought >> the points 1-3 in the memo were lame, but then I realized that it's the >> proper way to attack the defect in the law. >> >> How does the MPAA prove they are the correct party to bring suit? > >I doubt they have to; the filed complaint in the NY and CN suits state the >plaintiffs not as the MPAA, but as the individual copyright holders: >Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century Fox. Wouldn't the plantiff have to be the owner of the DVD copyright actually used with DeCSS, instead of the entire membership of the MPAA? John From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 14:26:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20442 for dvd-discuss-outgoing; Thu, 9 Mar 2000 14:26:28 -0500 Received: from hotmail.com (law2-f89.hotmail.com [216.32.181.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20397 for ; Thu, 9 Mar 2000 14:26:25 -0500 Received: (qmail 61911 invoked by uid 0); 9 Mar 2000 20:38:58 -0000 Message-ID: <20000309203858.61910.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 12:38:58 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 15:38:58 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >I don't think Kaplan's reasoning is sound for two reasons. > >First, he assumes that fair use defenses, like the copyright holder's >rights, must be statutory. This plainly ignores the judicial history of >fair use, which was a common law privilege and "judge-made" doctrine >before Congress codified it into the US code. When Congress did this, >it took notice of the fact that it was not creating fair use, but >merely stating pre-existing law. > >I provided citation and quotation for the above in >http://eon.law.harvard.edu/archive/dvd-discuss/msg01082.html , which >cites the Supreme Court in Cambell V Acuff-Rose and Harper & Row V >Nation Enterprises. > >The second objection is the First Amendment, and freedom of the press. >The 2nd Circuit (Kaplan's circuit) has said several times that fair use >balances first amendment issues with copyright powers. Even if the >context changes from infringment to circumvention, the First Amendment >must have some limitation on the new law. If there is no concept of >"fair access", then it must be created to balance access circumvention >laws against the first amendment. > >Here's citation to the 2nd Circuit Fair Use / First Amendment doctrine: >http://eon.law.harvard.edu/archive/dvd-discuss/msg01189.html > >It is important to note that computer programs in object code format >are considered 'literary works' under copyright law precisely because >they embody expression deserving of protection. See: >http://eon.law.harvard.edu/archive/dvd-discuss/msg01141.html The common law of fair use argument you propose is very good. However, I merely note that one of the authorities to which you provide a link states: "Perhaps because the fair use doctrine was predicated on the author's implied consent to 'reasonable and customary' use when he released his work for public consumption." If the fair use doctrine is so predicated, one could argue that a use which circumvents access control is not a "reasonable or customary" use. I would assume that what is a "reasonable or customary use" is guided by the traditional fair use factors as embodied in § 107. Applying fair use to the DMCA is only half of the analysis. The other half would be whether circumvention is fair use. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 14:32:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22990 for dvd-discuss-outgoing; Thu, 9 Mar 2000 14:32:20 -0500 Received: from hotmail.com (law2-f137.hotmail.com [216.32.181.137]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA22680 for ; Thu, 9 Mar 2000 14:31:44 -0500 Received: (qmail 76475 invoked by uid 0); 9 Mar 2000 20:44:16 -0000 Message-ID: <20000309204416.76474.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 12:44:16 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Date: Thu, 09 Mar 2000 15:44:16 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "John L. Chmielewski" >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] Filing a strategy? >Date: Thu, 9 Mar 2000 15:08:45 -0500 > >Wed, 8 Mar 2000 08:50:23 -0500 greslin@linuxpower.org wrote: > >>--- Bryan Taylor wrote: > >> Figuring out who has standing to sue when the authority is not defined > >> in a meaningful way in the law is pretty difficult. At first I thought > >> the points 1-3 in the memo were lame, but then I realized that it's the > >> proper way to attack the defect in the law. > >> > >> How does the MPAA prove they are the correct party to bring suit? > > > >I doubt they have to; the filed complaint in the NY and CN suits state >the > >plaintiffs not as the MPAA, but as the individual copyright holders: > >Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century >Fox. > >Wouldn't the plantiff have to be the owner of the DVD copyright actually >used with DeCSS, instead of the entire membership of the MPAA? > > >John The individual copyright owners are the plaintiffs. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 14:46:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25467 for dvd-discuss-outgoing; Thu, 9 Mar 2000 14:46:40 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25426 for ; Thu, 9 Mar 2000 14:46:34 -0500 Received: from [38.32.10.159] (helo=ip159.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12TA1y-0000kG-00; Thu, 9 Mar 2000 15:59:39 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 20:58:33 GMT Message-ID: <38ce0502.22419394@mail.tiac.net> References: <20000309194821.50284.qmail@hotmail.com> In-Reply-To: <20000309194821.50284.qmail@hotmail.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA25465 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 09 Mar 2000 14:48:21 EST, "Joshua Daub" wrote: >>But, with DVD, fair use is only enabled by a program that may or may not >>be included on the disc. (ie. navigation, rewind, pause, etc. might be >>disabled on any given title.) Wouldn't the lack of a standard and universal >>interface impact what can be considered fair use? > >I have no idea what this means. What is "a program that may or may not be >included on the disc?" ie. the Play button. Or perhaps an Easter egg command: Ctrl-Alt + "Door6" >Access control??? If you are saying that "fair use >is only enabled by [access control]," I agree. But that is the converse of >saying that access control eliminates or destroys fair use. It doesn't generally. Let's forget about fair use. Any use at all is no longer dependent on a standard consumer electronics interface, but on an optional program element that the publisher may or may not decide to include in the title. I guess we'll have to rely on market forces to enable a usability standard. ie. when word of Disney's four minute trailers gets around, it could affect sales to parents--or the demand for "101 Dalmations" among ten year olds outweighs competition and leads to ten minutes of ads. Whatever. The point being DVD unhooks the buttons on the VCR by default and only enables them through program elements. Hence my idea to produce CSS-protected DVDs with empty IFO files, that require something like DeCSS to function. >At the most, access control "limits" a fair use to one that does not >circumvent the access control. I say at the most, because under the actual >law, fair use does not seem relevent to access control, because (repeat >after me): Yeah, sorry to confuse the threads. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 14:57:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA28593 for dvd-discuss-outgoing; Thu, 9 Mar 2000 14:57:20 -0500 Received: from mx1.organic.com (mx1.organic.com [207.76.139.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA28588 for ; Thu, 9 Mar 2000 14:57:14 -0500 Received: from fwd1-sf.organic.com (fwd1-sf [207.76.139.9]) by mx1.organic.com (8.9.3/8.9.3) with ESMTP id LAA13005 for ; Thu, 9 Mar 2000 11:26:59 -0800 (PST) Received: from po1-chi.organic.com (hoffa.organic.com [192.168.128.24]) by fwd1-sf.organic.com (8.9.3/8.9.3) with ESMTP id LAA13035 for ; Thu, 9 Mar 2000 11:26:53 -0800 (PST) Received: from bigbrother.net ([192.168.128.174]) by po1-chi.organic.com (8.9.3/8.9.3) with ESMTP id NAA21323 for ; Thu, 9 Mar 2000 13:27:27 -0600 (CST) Message-ID: <38C7FAE2.9020606@bigbrother.net> Date: Thu, 09 Mar 2000 13:26:26 -0600 From: Steve Stearns User-Agent: Netscape 5.0 X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] region locking argument References: <20000309124241.A5833@thud.reric.net> Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA28590 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > us: With region codes, The MPAA is just trying to enforce artificial > pricing schemes! > them: But we haven't even released [new movie] in Europe yet! It's not > fair that people could import the DVD; nobody'd ever go to the theatre! > us: Then why are you region locking movies released TEN YEARS AGO ? > I'm not sure if region locking will ever make it into a trial, but it's > kind of hard to beat that one. Well, the thing is that the region locking is an entirely seperate issue because DeCSS does not implement the region coding.  The region coding is handled by a a byte of data on the disc which most DVD players are designed to read and proceed to enforce the region restrictions. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:04:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA29321 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:04:23 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA29299 for ; Thu, 9 Mar 2000 15:04:20 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id NAA18202 for ; Thu, 9 Mar 2000 13:17:37 -0800 (PST) Message-ID: <38C81498.A5A86F48@cdpage.com> Date: Thu, 09 Mar 2000 14:16:09 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? References: <20000309150845.A2537@tardis.offbeat.home> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "John L. Chmielewski" wrote: > >> > >> How does the MPAA prove they are the correct party to bring suit? > > > >I doubt they have to; the filed complaint in the NY and CN suits state the > >plaintiffs not as the MPAA, but as the individual copyright holders: > >Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century Fox. > > Wouldn't the plantiff have to be the owner of the DVD copyright actually > used with DeCSS, instead of the entire membership of the MPAA? > > John That might be tough, since there's been no mention so far (AFAIK) of any copyrighted work being "used" with DeCSS. That's another thing that's so strange about this - the plaintiffs are claiming that DeCSS could be used for circumvention. They have no evidence that it actually HAS been used for circumvention. -- Dana J. Parker From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:07:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA30302 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:07:46 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA30299 for ; Thu, 9 Mar 2000 15:07:45 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 482297709; Thu, 9 Mar 2000 15:21:21 -0600 (CST) Date: Thu, 9 Mar 2000 15:21:21 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309152121.A2702@arh1176.urh.uiuc.edu> References: <20000309152321.44302.qmail@hotmail.com> <4.3.0.20000309103846.023e56d0@pop.webcom.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <4.3.0.20000309103846.023e56d0@pop.webcom.com>; from declan@wired.com on Thu, Mar 09, 2000 at 10:41:27AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 10:41:27AM -0500, Declan McCullagh wrote: > Now this is amusing. I never pictured myself a revolutionary, > down-with-the-capitalist-pigs type before, and certainly never a feverish > one. Hmm. Anyway, it's one thing to play devil's advocate, sure, it's > another to mouth off on a mailing list in a way that could prompt others to > try something of dubious legality that you're unwilling to do yourself. > > -Declan Well, even if something like what he was suggesting was provably legal (and it may be), it would be extremely expensive to get that accross in court. Really, that is why this group exists, to support the individuals who are being sued by huge corperations over actions we think are legal. It is a simple fact that the individuals on this list have less resources than do the makers of Censorware or DVDs or whomever. Becoming a defendant in one of those cases involves a lot more than just wanting to oppose the corperations on the issues. It is perticularly hard because you arn't the one to choose, it is the corperation who sues you. I hope we can do what we can to help out the defendants in the cases in NY, CA and CT. They need all the help they can get. -- Steven Barker scbarker@uiuc.edu The means-and-ends moralists, or non-doers, always end up on their ends without any means. -- Saul Alinsky From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:13:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31062 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:13:00 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA31058 for ; Thu, 9 Mar 2000 15:12:59 -0500 Received: (qmail 7475 invoked by uid 500); 10 Mar 2000 15:02:31 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 10 Mar 2000 15:02:31 -0000 Date: Fri, 10 Mar 2000 07:02:31 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <38cbf332.17858930@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I want to point out the things MPAA will use to win: 1) The (Xing?) key was a deliberate stolen "trade secret" which enables the creation of DeCSS. 2) The MPAA will use this in their defense to say "our trade secrets were stolen. Can't we have the protection of the government from stolen intellectual property." 3) Which comes to the next point: DMCA. By using the stolen key, hackers were able to create DeCSS. Following the logic by using stolen trade secret or intellectual property to circumvent protection scheme which by most people standard may agree that MPAA has a point. The above points are the most powerful arguments the plantiff will use to defend its technology. With a patent given to CSS on December 1999 (correct me if I'm wrong), they will use this as a way of argument in addition to the above. Here's my question: How are we going to use the argument on the premise of "reverse engineering", if the (Xing?) key was stolen? Reverse engineering as I understand it, is the process to decipher the technology without any stolen intellectual property. Which is why Connectix won the case against Sony. They did it through pure intelligent. =================== My opinion: I'm not sure what the facts is behind the Xing stolen key. Perhaps the CSS and MPAA made the story up to incriminate the creator of DeCSS so they can maximize their profit. The persons who wrote DeCSS are better to answers this and reveal the "facts". I don't think the two German anonymous hackers will testify in front the court. Which will make the DeCSS case weaker. >From reading the court precedings, there's tamper of evidence and false information being injected. If we can hunt that down, we have a more favorable position. My two cents. Kent Nguyen On Thu, 9 Mar 2000, Ron Gustavson wrote: > On Thu, 09 Mar 2000 13:27:40 EST, "Joshua Daub" wrote: > > >>So basically you are saying that as long as their is some means by >which I > >>can make use of a DVD in a fair use context, then the access >control > >>measure is not de facto eliminating fair use. > > > >All I am saying is: > >1. It is possible to make a fair use without circumventing access control. > > > But, with DVD, fair use is only enabled by a program that may or may not > be included on the disc. (ie. navigation, rewind, pause, etc. might be > disabled on any given title.) Wouldn't the lack of a standard and universal > interface impact what can be considered fair use? > > >was transformative. However, I do recall several even more recent fair use > >cases in the circuit courts involving fair use of photocopying for > >educational purposes. A photocopying fair use case might provide some > >authority for a non-transformative duplication of an entire work. > > If you can post the names of any of these under Legal issues #3 > thread, perhaps some of us might be able to look them up for > Robin's list (35 requested.) > > > __________no-∞-do__________ > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:17:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31232 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:17:02 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31229 for ; Thu, 9 Mar 2000 15:17:01 -0500 Received: from sympatico.ca ([216.209.127.94]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id QAA12793 for ; Thu, 9 Mar 2000 16:35:25 -0500 (EST) Message-ID: <38C8197E.BC42DB17@sympatico.ca> Date: Thu, 09 Mar 2000 16:37:02 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: <20000309194821.50284.qmail@hotmail.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > At the most, access control "limits" a fair use to one that does not > circumvent the access control. I say at the most, because under the actual > law, fair use does not seem relevent to access control, because (repeat > after me): > > 1. a suit under 17 U.S.C. § 1200 et. seq. is not a suit for copyright > infringement, and > > 2. fair use is only a defense to copyright infringement. I've been making precisely these points for weeks now. Hopefully soon some more people will start to absorb this. The 'fair use' discussions raging in this mailing list, in my opinion, are simply, and regrettably, inapplicable to this case. There are LOTS of other avenues of legal reasoning that are -not- dead ends, so we ought to be concentrating on them. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:17:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31227 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:17:00 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31224 for ; Thu, 9 Mar 2000 15:16:59 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id A379B7709; Thu, 9 Mar 2000 15:30:35 -0600 (CST) Date: Thu, 9 Mar 2000 15:30:35 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309153035.B2702@arh1176.urh.uiuc.edu> References: <20000309182740.17723.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000309182740.17723.qmail@hotmail.com>; from jadaub@hotmail.com on Thu, Mar 09, 2000 at 01:27:40PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 01:27:40PM -0500, Joshua Daub wrote: > >So basically you are saying that as long as their is some means by >which I > >can make use of a DVD in a fair use context, then the access >control > >measure is not de facto eliminating fair use. > > All I am saying is: > 1. It is possible to make a fair use without circumventing access control. > > 2. Therefore, 1200 does not eliminate all fair use. > > 3. My real point is that under the current law, fair use is not an issue > under 1200. Is it always possible to make fair use despite access controls? This seems to me to depend greatly on the access control used. Fair use also depends on the material used, whereas access controls act regardless of what exactly they control. This is really the biggest problem with 1201 blocking circumvention devices, because a circumvention device (in the case of CSS at least) is specific to a scrambling system, but not to copyrighted works. Thus it would be legal to distribute a program to break the encryption of uncopyrighted material, but not if the material is copyrighted. The court will have to decide how to deal with the situation when there exists both kinds of material. -- Steven Barker scbarker@uiuc.edu The means-and-ends moralists, or non-doers, always end up on their ends without any means. -- Saul Alinsky From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:18:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31264 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:18:30 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31261 for ; Thu, 9 Mar 2000 15:18:28 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 9 Mar 2000 13:31:47 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1988@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] What am I not getting? Date: Thu, 9 Mar 2000 13:31:45 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've got a very basic understanding (possibly incomplete and/or incorrect) about some of the issues in this case. From what I understand, one of the charges is that of >stealing< the trade secret of the compression. Now, from what I understand, there are various ways to protect key concepts in business: Patent Copyright Trade Secret Each has it's advantages and disadvantages. Patent provides protection by publicizing the mechanism & offering legal redress if somebody else makes use of the same mechanism. Copyright covers the -expression- of an idea, but not the idea itself. Trade Secret depends on keeping something to yourself. The problem w/ Trade Secret is that, if somebody else independantly develops the same technique, you have no redress. They seem to be going after these guys for theft of trade secret (theft is, after all, still a crime). But if I understand it correctly, these guys did not break into any computers to steal information, the reverse engineered the technique. If the MPAA (or whoever) had patented their mechanism, they would have legal recourse -- but since they went the Trade Secret route, and they can not establish actual trespass or theft, they should essentially be SOL. Unfortunately, the legal mind (and the legal system) does not always seem to work in a rational manner. But AFAIK, the situation as I have outlined -is- in line w/ how the legal system works. But I don't know what approach to these issues the defense team is taking. And even people closer to the issue such as the FSF can miss the forest for the trees since they are so close the issue and, frankly, have their focus on a slightly different issue. Have I misunderstood the situation in any way? If so, please enlighten me. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:18:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31270 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:18:32 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31266 for ; Thu, 9 Mar 2000 15:18:31 -0500 Received: from sympatico.ca ([216.209.127.94]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id QAA13395 for ; Thu, 9 Mar 2000 16:36:58 -0500 (EST) Message-ID: <38C819DC.695DEF3C@sympatico.ca> Date: Thu, 09 Mar 2000 16:38:36 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? References: <20000309150845.A2537@tardis.offbeat.home> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "John L. Chmielewski" wrote: > > Wed, 8 Mar 2000 08:50:23 -0500 greslin@linuxpower.org wrote: > >>--- Bryan Taylor wrote: > >> Figuring out who has standing to sue when the authority is not defined > >> in a meaningful way in the law is pretty difficult. At first I thought > >> the points 1-3 in the memo were lame, but then I realized that it's the > >> proper way to attack the defect in the law. > >> > >> How does the MPAA prove they are the correct party to bring suit? > > > >I doubt they have to; the filed complaint in the NY and CN suits state the > >plaintiffs not as the MPAA, but as the individual copyright holders: > >Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century Fox. > > Wouldn't the plantiff have to be the owner of the DVD copyright actually > used with DeCSS, instead of the entire membership of the MPAA? Didn't Rob just say in the above quote that the individual copyright holders, and NOT just the MPAA, file suit? I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:23:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32368 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:23:25 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA32329 for ; Thu, 9 Mar 2000 15:23:23 -0500 Received: from [38.32.10.159] (helo=ip159.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12TAbW-0001wR-00; Thu, 9 Mar 2000 16:36:22 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] tech issues #2 Date: Thu, 09 Mar 2000 21:35:14 GMT Message-ID: <38d017d6.27239835@mail.tiac.net> References: <38c6562f.4023194@mail.tiac.net> In-Reply-To: <38c6562f.4023194@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id PAA32354 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >>2. True or False: It is impossible to fast-forward past commercials or >>FBI warnings on DVDs? > >On Dr. Caligari, I am able to fast forward through the FBI warning. >It still appears, but for just 3 or 4 seconds instead of the normal >12 seconds. > >Of course navigation controls are unique to each title. > >Supposedly, Disney's Tarzan has 4 minutes of trailers which can't be >skipped, but can be fast-forwarded. >(http://news.cnet.com/news/0-1007-200-1563949.html?tag=st.ne.1002.tgif?st.ne.fd.gif.k) > Another example of DVD's navigation possibilities is a title that Hertz produced for airport shuttle buses. This title autoplays and repeats itself until the vehicle is shut off, relieving the driver of the need to start, stop, rewind, or do anything. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:27:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01209 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:27:37 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01205 for ; Thu, 9 Mar 2000 15:27:36 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 51B917709; Thu, 9 Mar 2000 15:41:12 -0600 (CST) Date: Thu, 9 Mar 2000 15:41:12 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309154112.C2702@arh1176.urh.uiuc.edu> References: <20000309203858.61910.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0us In-Reply-To: <20000309203858.61910.qmail@hotmail.com>; from jadaub@hotmail.com on Thu, Mar 09, 2000 at 03:38:58PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 03:38:58PM -0500, Joshua Daub wrote: > "Perhaps because the fair use doctrine was predicated on the author's > implied consent to 'reasonable and customary' use when he released his > work for public consumption." > > If the fair use doctrine is so predicated, one could argue that a use which > circumvents access control is not a "reasonable or customary" use. I would > assume that what is a "reasonable or customary use" is guided by the > traditional fair use factors as embodied in § 107. I think it is "reasonable" use to circumvent the access controls in order to view my DVD on linux. It is the only way. Circumventing the access controls in order to take a clip for use in an educational presentation would be "customary" fair use. The point is that 1201 tries to change "reasonable or customary" to "authorized by the copyright holder." -- Steven Barker scbarker@uiuc.edu The means-and-ends moralists, or non-doers, always end up on their ends without any means. -- Saul Alinsky From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:30:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01739 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:30:48 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01736 for ; Thu, 9 Mar 2000 15:30:47 -0500 Received: from 209-122-248-84.s338.tnt8.lnhva.md.dialup.rcn.com ([209.122.248.84]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12TAiL-0000LW-00 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 16:43:26 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: Date: Thu, 9 Mar 2000 16:43:00 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: [dvd-discuss] Fenwick and West: Advanced Copright Issues on the Internet Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following link leads to an interesting paper on copyright issues and digital transmission.It discusses the DMCA, and several alternative bills that did not pass. Interesting reading... http://www.fenwick.com/html/advenced_copyright_1999.htm Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:33:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01932 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:33:14 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01929 for ; Thu, 9 Mar 2000 15:33:12 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id NAA19131 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 13:57:08 -0800 Date: Thu, 9 Mar 2000 13:57:08 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fenwick and West: Advanced Copright Issues on the Internet Message-ID: <20000309135708.K15370@duskglow.com> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jerwin@gmu.edu on Thu, Mar 09, 2000 at 04:43:00PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I haven't followed the link, bus is the misspelling of "advanced" intentional? --Russell On Thu, Mar 09, 2000 at 04:43:00PM -0500, Jeremy Erwin wrote: > The following link leads to an interesting paper on copyright issues > and digital transmission.It discusses the DMCA, and several > alternative bills that did not pass. Interesting reading... > http://www.fenwick.com/html/advenced_copyright_1999.htm > > Jeremy Erwin -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:46:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04636 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:46:57 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04577 for ; Thu, 9 Mar 2000 15:46:54 -0500 Received: from mindspring.com (user-2ivf8dt.dialup.mindspring.com [165.247.161.189]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id QAA13900 for ; Thu, 9 Mar 2000 16:59:59 -0500 (EST) Message-ID: <38C81E09.D9AA1754@mindspring.com> Date: Thu, 09 Mar 2000 16:56:25 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen wrote: > > foundation to create CSS. Thus the lawsuit. I hope the defendant in case > steer away from DMCA and move toward human rights. > > It's a game, MPAA plant the seed before you decide to take the > offense. We should be careful not to fall in their strategy. > Isn't the problem though, that the Judiciary is only able to operate within the arena of written law while it is the job of the Congress to express human rights as laws. I agree, however, it is not a good strategy to enguage in finding ways to argue that DeCSS is legal as provided by the DMCA, but rather to attack the DMCA directly as the result of Congress exceeding its authority by not lending fair credence to the 1st Admendment. The precedent that is set in this case is very important. If, however, you mean that we justify our statement that Congress has exceeded its Constitutional rights by passing a law that violates human rights that the Constitution embodies, well then I agree with that. Oh, yea, BTWIANAL either. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 15:52:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05734 for dvd-discuss-outgoing; Thu, 9 Mar 2000 15:52:57 -0500 Received: from localhost.localdomain (root@bur-jud-118-039.rh.uchicago.edu [128.135.118.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05731 for ; Thu, 9 Mar 2000 15:52:56 -0500 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id QAA15708 for ; Thu, 9 Mar 2000 16:06:04 -0600 Date: Thu, 9 Mar 2000 16:06:04 -0600 (CST) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ: What is a patent? (2.11.1) In-Reply-To: <20000309204416.76474.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: MULTIPART/MIXED; BOUNDARY="8323328-953521803-952639564=:15586" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This message is in MIME format. The first part should be readable text, while the remaining parts are likely unreadable without MIME-aware tools. Send mail to mime@docserver.cac.washington.edu for more info. --8323328-953521803-952639564=:15586 Content-Type: TEXT/PLAIN; charset=US-ASCII I have attached a submission for the FAQ, which answers question 2.11.1 - What is a patent? How do patents differ from copyrights and trade secrets? I am sure of the definiton of patent, less so of the discussion of differences. These issues are taken mostly from other discussion in the FAQ, and the brochure from the USPTO that I reference. Additional useful resources include www.patents.com (very comprehensive) sam th sytobinh@uchicago.edu --8323328-953521803-952639564=:15586 Content-Type: TEXT/PLAIN; charset=US-ASCII; name=whatispatent Content-Transfer-Encoding: BASE64 Content-ID: Content-Description: Content-Disposition: attachment; filename=whatispatent V2hhdCBpcyBhIHBhdGVudD8NCg0KRnJvbSB0aGUgVVMgUGF0ZW50IGFuZCBU cmFkZW1hcmsgT2ZmaWNlIChodHRwOi8vd3d3LnVzcHRvLmdvdikgYnJvY2h1 cmUgR2VuZXJhbCBJbmZvcm1hdGlvbiBDb25jZXJuaW5nIFBhdGVudHMgKGh0 dHA6Ly93d3cudXNwdG8uZ292L3dlYi9vZmZpY2VzL3BhYy9kb2MvZ2VuZXJh bC93aGF0aXMuaHRtKQ0KDQo8Y2l0ZT4NCkEgcGF0ZW50IGZvciBhbiBpbnZl bnRpb24gaXMgdGhlIGdyYW50IG9mIGEgcHJvcGVydHkgcmlnaHQgdG8gdGhl IGludmVudG9yLCBpc3N1ZWQgYnkgdGhlIFBhdGVudCBhbmQgVHJhZGVtYXJr IE9mZmljZS4gVGhlIHRlcm0gb2YgYSBuZXcgcGF0ZW50IGlzIDIwIHllYXJz IGZyb20gdGhlIGRhdGUgb24gd2hpY2ggdGhlIGFwcGxpY2F0aW9uIGZvciB0 aGUgcGF0ZW50IHdhcyBmaWxlZCBpbiB0aGUgVW5pdGVkIFN0YXRlcyBvciwg aW4gc3BlY2lhbCBjYXNlcywgZnJvbSB0aGUgZGF0ZSBhbiBlYXJsaWVyIHJl bGF0ZWQgYXBwbGljYXRpb24gd2FzIGZpbGVkLCBzdWJqZWN0IHRvIHRoZSBw YXltZW50IG9mIG1haW50ZW5hbmNlIGZlZXMuIFVTIHBhdGVudCBncmFudHMg YXJlIGVmZmVjdGl2ZSBvbmx5IHdpdGhpbiB0aGUgVVMsIFVTIHRlcnJpdG9y aWVzLCBhbmQgVVMgcG9zc2Vzc2lvbnMuIA0KDQpUaGUgcmlnaHQgY29uZmVy cmVkIGJ5IHRoZSBwYXRlbnQgZ3JhbnQgaXMsIGluIHRoZSBsYW5ndWFnZSBv ZiB0aGUgc3RhdHV0ZSBhbmQgb2YgdGhlIGdyYW50IGl0c2VsZiwgInRoZSBy aWdodCB0byBleGNsdWRlIG90aGVycyBmcm9tIG1ha2luZywgdXNpbmcsIG9m ZmVyaW5nIGZvciBzYWxlLCBvciBzZWxsaW5nIiB0aGUgaW52ZW50aW9uIGlu IHRoZSBVbml0ZWQgU3RhdGVzIG9yICJpbXBvcnRpbmciIHRoZSBpbnZlbnRp b24gaW50byB0aGUgVW5pdGVkIFN0YXRlcy4gV2hhdCBpcyBncmFudGVkIGlz IG5vdCB0aGUgcmlnaHQgdG8gbWFrZSwgdXNlLCBvZmZlciBmb3Igc2FsZSwg c2VsbCBvciBpbXBvcnQsIGJ1dCB0aGUgcmlnaHQgdG8gZXhjbHVkZSBvdGhl cnMgZnJvbSBtYWtpbmcsIHVzaW5nLCBvZmZlcmluZyBmb3Igc2FsZSwgc2Vs bGluZyBvciBpbXBvcnRpbmcgdGhlIGludmVudGlvbi4NCjwvY2l0ZT4NCg0K UGF0ZW50cyBkaWZmZXIgc2lnbmlmaWNhbnRseSBmcm9tIGJvdGggY29weXJp Z2h0cyBhbmQgdHJhZGUgc2VjcmV0cy4gIFBhdGVudHMgZm9jdXMgb24gdGhl IGNvbmNlcHQgdGhhdCBoYXMgYmVlbiBkZXZlbG9wZWQsIHdoaWNoIGlzIChv ciBzaG91bGQgYmUpIGEgbmV3LCBub24tdHJpdmlhbCBpZGVhLiAgQ29weXJp Z2h0cyBmb2N1cyBvbiB0aGUgZm9ybSBvZiB0aGUgZXhwcmVzc2lvbi4gIEEg Y29weXJpZ2h0IGRvZXMgbm90IGNvdmVyIHRoZSBpZGVhcyBleHByZXNzZWQs IGJ1dCBob3cgdGhleSBhcmUgZXhwcmVzc2VkLiAgUGF0ZW50cyBwcmV2ZW50 IHNvbWVvbmUgZWxzZSBmcm9tIGltcGxlbWVudGluZyB0aGUgc2FtZSBjb25j ZXB0LCBldmVuIGlmIGluIGRpZmZlcmVudCBmb3JtLiAgDQoNClRyYWRlIHNl Y3JldHMgYXJlIGFsc28gbXVjaCBkaWZmZXJlbnQgdGhhbiBwYXRlbnRzLiAg Rmlyc3QsIHBhdGVudHMgYXJlIG5lY2Nlc3NhcmlseSBwdWJsaXNoZWQgYXMg YSBwYXJ0IG9mIHRoZSBzdWJtaXNzaW9uIHByb2Nlc3MsIHdoaWxlIHRyYWRl IHNlY3JldHMgYnkgZGVmaW5pdGlvbiBhcmUgbm90LiAgSW4gZmFjdCwgdHJh ZGUgc2VjcmV0cyBtdXN0IGJlIHByb3RlY3RlZCBpbiBvcmRlciB0byBiZSB2 YWxpZCBhbmQgZW5mb3JjZWFibGUuICBTZWNvbmQsIHRoZSBpZGVhIG9yIGNv bmNlcHQgYmVoaW5kIGEgdHJhZGUgc2VjcmV0IGlzIG5vdCBuZWNjZXNhcmls eSBwcm90ZWNlZC4gIElmIHNvbWVvbmUgaGFkIHRoZSBpbmNsaW5hdGlvbiwg dGhleSBjb3VsZCBpbXBsZW1lbnQgYW4gYWx0ZXJuYXRpdmUgNDAtYml0IGVu Y3J5cHRpb24gc3lzdGVtIGZvciBEVkRzIHdpdGhvdXQgaW5mcmluZ2luZyBv biB0aGUgY2xhaW1lZCB0cmFkZSBzZWNyZXRzIG9mIHRoZSBEVkQgQ0NBLiAg --8323328-953521803-952639564=:15586-- From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:00:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08702 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:00:39 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA08672 for ; Thu, 9 Mar 2000 16:00:33 -0500 Received: (qmail 6688 invoked by uid 60001); 9 Mar 2000 22:13:34 -0000 Message-ID: <20000309221334.6687.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Thu, 09 Mar 2000 14:13:34 PST Date: Thu, 9 Mar 2000 14:13:34 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm going to be skiing in Jackson Hole, WY for a few days, so it'll be a while until I get to post again. --- greslin@linuxpower.org wrote: > And, for the record, this mailing list was *not* put into place to > advance a doctrine or ideology. It was not to convince people of the > rightness of our cause. If you want that, you can go to Slashdot. Actually, I proposed creating this forum in a thread on Slashdot in order to allow more constructive action by the members of the open source community. At no time did anyone suggest that the purpose was not to convince people of the rightness of our cause. Where did you get this bizarre revisionist idea? In fact, just the opposite, the point was, from the outset, to establish a forum where members sympathetic to the open source movement could constructively work together to help advance the open sourse legal agenda, which is one of electronic freedoms and is virtually identical to that of the EFF. This is not to say that DeCSS, MoRE, and/or the defendants in these cases always align with our values. We (the participants in the Slashdot thread) appoached openlaw because we observed their mission aligned with what we wanted. As it says on the openlaw homepage: "Openlaw is an experiment in crafting legal argument in an open forum. With your assistance, we will develop arguments, draft pleadings, and edit briefs in public, online." > The purpose of this mailing list is to leverage the collective eyes, > ears, skills and time of the open source community in order to provide > the EFF with intelligence information in order that they can build quality > arguments. This just isn't quite right. The purpose of this mailing list is to build quality arguments ourselves. > In order to fulfill that task, we need to keep "doctrine advancement" > out of it. There is nothing wrong with somebody doing a little "doctrine advancement" as long as somebody else is cross-examining their point of view. The most constructive dialogue occurs only when two advocates take opposite sides of an issue, which is why being a devil's advocate is so valuable. I would recommend that the next time you see somebody engagine in "doctrine advancement", take the devil's advocate position and find some citation to back it up. This is a lot more educational for everybody than whining a lot about how people are biased. Whining about methods just tends to waste everybody's time in threads like this one. To date, I've seen one content based response to the original post in the thread. It was greatly appreciated. I wish there were more like that, but instead, we're discussing how we should be discussing things. What an incredible waste of time. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:03:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09176 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:03:38 -0500 Received: from mx1.organic.com (mx1.organic.com [207.76.139.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09172 for ; Thu, 9 Mar 2000 16:03:36 -0500 Received: from fwd1-sf.organic.com (fwd1-sf [207.76.139.9]) by mx1.organic.com (8.9.3/8.9.3) with ESMTP id NAA26868 for ; Thu, 9 Mar 2000 13:50:15 -0800 (PST) Received: from po1-chi.organic.com (hoffa.organic.com [192.168.128.24]) by fwd1-sf.organic.com (8.9.3/8.9.3) with ESMTP id NAA26277 for ; Thu, 9 Mar 2000 13:50:14 -0800 (PST) Received: from bigbrother.net ([192.168.128.174]) by po1-chi.organic.com (8.9.3/8.9.3) with ESMTP id PAA01746 for ; Thu, 9 Mar 2000 15:50:53 -0600 (CST) Message-ID: <38C81C7F.6020200@bigbrother.net> Date: Thu, 09 Mar 2000 15:49:51 -0600 From: Steve Stearns User-Agent: Netscape 5.0 X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA09174 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > the creation of DeCSS. It was a deliberately stolen "trade secret" if the shrink wrap license on the Xing player was valid.  Generally speaking, something can be maintained under trade secret provisions if you make an effort to keep it secret.  Signing people to non-discolsures, and forbidding reverse engineering are such provisions.  But, the Xing player was reverse engineered in Norway, by an underage hacker.  Reverse engineering is okay in Norway and I don't know that you can explicitly eliminate that right under norweigan law.  The hacker was underage, so he could not enter into a legal contract with Xing and thus is not bound by the shrink wrap license that came with the software. Thus, it seems to me that Xing did not adequately enforce the secrecy on their product and so I think this argument gets shot down. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:04:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09304 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:04:52 -0500 Received: from hotmail.com (law2-f314.hotmail.com [216.32.180.168]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA09283 for ; Thu, 9 Mar 2000 16:04:43 -0500 Received: (qmail 15072 invoked by uid 0); 9 Mar 2000 22:17:08 -0000 Message-ID: <20000309221708.15071.qmail@hotmail.com> Received: from 206.245.144.73 by www.hotmail.com with HTTP; Thu, 09 Mar 2000 14:17:07 PST X-Originating-IP: [206.245.144.73] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 09 Mar 2000 17:17:07 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Ian Hay >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA >Date: Thu, 09 Mar 2000 16:37:02 -0500 > >Joshua Daub wrote: > > > At the most, access control "limits" a fair use to one that does not > > circumvent the access control. I say at the most, because under the >actual > > law, fair use does not seem relevent to access control, because (repeat > > after me): > > > > 1. a suit under 17 U.S.C. § 1200 et. seq. is not a suit for copyright > > infringement, and > > > > 2. fair use is only a defense to copyright infringement. > >I've been making precisely these points for weeks now. Hopefully soon >some more people will start to absorb this. > >The 'fair use' discussions raging in this mailing list, in my opinion, >are simply, and regrettably, inapplicable to this case. There are LOTS >of other avenues of legal reasoning that are -not- dead ends, so we >ought to be concentrating on them. > Give me one avenue of legal reasoning that is not a dead end. I have a sneaking suspicion (well, alright, I know) that this is exactly why Congress enacted the anti circumvention portion of the DMCA. So I think arguing that this is allowed under the DMCA is foolish. Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:15:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11144 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:15:51 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA11141 for ; Thu, 9 Mar 2000 16:15:49 -0500 Received: from mindspring.com (user-2ivf26g.dialup.mindspring.com [165.247.136.208]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id RAA06320 for ; Thu, 9 Mar 2000 17:28:55 -0500 (EST) Message-ID: <38C824D1.C97432DD@mindspring.com> Date: Thu, 09 Mar 2000 17:25:21 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] region locking argument References: <20000309124241.A5833@thud.reric.net> <38C7FAE2.9020606@bigbrother.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns wrote: > > us: With region codes, The MPAA is just trying to enforce artificial > > pricing schemes! > > them: But we haven't even released [new movie] in Europe yet! It's not > > fair that people could import the DVD; nobody'd ever go to the theatre! > > us: Then why are you region locking movies released TEN YEARS AGO ? > > I'm not sure if region locking will ever make it into a trial, but it's > > kind of hard to beat that one. > Well, the thing is that the region locking is an entirely seperate issue > because DeCSS does not implement the region coding. The region coding > is handled by a a byte of data on the disc which most DVD players are > designed to read and proceed to enforce the region restrictions. > > ---Steve I think they are in fact linked. Firstly, though DVD players, I think, have always been region coded, DVD-ROMS (DVD players for computers) have not until January 1, 2000 (see http://www.dvdcca.org/dvdcca/ RCPII info). In fact, I think I recall come DVD players being advertized as region free as well. Secondly, the playback software (and the MPEG decoder cards too probably) also checks for region compatibilty. Ok so how about this scenario? Some company decides that this whole region coding thing is just one giant scheme to screw over the consumer -- I mean, really, is there any doubt at all? -- and by the way this country over here has outlawed the concept of region coding and so ramps up to provide software and/or hardware that ignores region coding. For example, I imagine, for those lucky owners of RPC-I drives, the linux playback software will ignore region codes. But, DVD-CCA refuses to grant them a license and because of CSS and DMCA, they can not offer to the public a region free DVD player. There's little doubt in my mind that CSS is nothing more than a vehicle to enforce region coding. It certainly doesn't prevent copying. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:16:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11227 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:16:32 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA11223 for ; Thu, 9 Mar 2000 16:16:30 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id OAA19221 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 14:40:27 -0800 Date: Thu, 9 Mar 2000 14:40:26 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power Message-ID: <20000309144026.L15370@duskglow.com> References: <20000309221334.6687.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000309221334.6687.qmail@web503.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Mar 09, 2000 at 02:13:34PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think both of you should stop your fighting. Maybe we'd be better off asking the lawyers what they would like to see? After all, they're the ones we're really doing this for anyways. Robin has already given us a list of questions she would like researched. This says to me that that is what they see the purpose of this list as - some help coming up with ideas and researching them. Coming up with ideas with the express purpose of defending our point of view is not wrong - failing to defend them properly and keeping objectivity after the questions are asked *is*. My opinion is - if you have an idea for a novel defense, shoot. Then sit back and let it be ripped to shreds if need be. And don't cry if it is. Defenses are useful, propaganda is useless, and if you need a defining criteria, ask yourself if what you are saying will help the cause of the lawyers or not. If it won't, then you're the one wasting time, and you should probably shut up, sit back, and let the debate and research continue. That is why I contribute very little. I don't particularly like discussing things I am not prepared to defend on the facts. Personally I think the MPAA sucks certain body parts, and I wish a large meteor would land on their headquarters, but that feeling and that wish will not help the case. This is the wrong time and place for a flamewar, we're fighting an uphill battle here, and it would behoove all of us to keep our eye on the ball, or you will have had a material influence on throwing this case and having the exact effect you are trying to avoid. To sum up: We are here to help the lawyers. If you cannot help the lawyers, shut up and don't clutter the list. This list may have been created with one purpose. But lists purposes morph. And if you want to keep the lawyer audience, don't fight it. In other words, we're not here anymore to play with ourselves legally. You insist on it, and the lawyers will go elsewhere. The lawyers are under a time constraint and will not wait for us to deal with internal squabbles. --Russell On Thu, Mar 09, 2000 at 02:13:34PM -0800, Bryan Taylor wrote: > --- greslin@linuxpower.org wrote: > > > And, for the record, this mailing list was *not* put into place to > > advance a doctrine or ideology. It was not to convince people of the > > rightness of our cause. If you want that, you can go to Slashdot. > > Actually, I proposed creating this forum in a thread on Slashdot in > order to allow more constructive action by the members of the open > source community. At no time did anyone suggest that the purpose was > not to convince people of the rightness of our cause. Where did you get > this bizarre revisionist idea? > -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:24:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14550 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:24:47 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA14495 for ; Thu, 9 Mar 2000 16:24:45 -0500 Received: from travel-net.com (trj90.travel-net.com [207.176.160.90]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA32035 for ; Thu, 9 Mar 2000 17:38:11 -0500 Message-ID: <38C827B2.897719B@travel-net.com> Date: Thu, 09 Mar 2000 17:37:38 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.72 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen wrote: > > I want to point out the things MPAA will use to win: > > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > the creation of DeCSS. > > 2) The MPAA will use this in their defense to say "our trade secrets were > stolen. Can't we have the protection of the government from stolen > intellectual property." Ummmmmmmmmmmmmmmmm, once again the suits are not filed by MPAA but by individual plaintiffs. MPAA did not hold the secrets. thats presumably one of the reasons the filing was not in their name. Since the secrets were not theirs, they had no harm and could not file suit for the harm caused by the loss of the trade secret. > > 3) Which comes to the next point: DMCA. By using the stolen key, > hackers were able to create DeCSS. Following the logic by > using stolen trade secret or intellectual property to circumvent > protection scheme which by most people standard may agree that MPAA has a > point. > > The above points are the most powerful arguments the plantiff will use to > defend its technology. With a patent given to CSS on December 1999 > (correct me if I'm wrong), they will use this as a way of argument in > addition to the above. > > Here's my question: > > How are we going to use the argument on the premise of "reverse > engineering", if the (Xing?) key was stolen? > > Reverse engineering as I understand it, is the process to decipher the > technology without any stolen intellectual property. Which is why > Connectix won the case against Sony. They did it through pure intelligent. > > =================== > My opinion: > > I'm not sure what the facts is behind the Xing stolen key. Perhaps the > CSS and MPAA made the story up to incriminate the creator of DeCSS so > they can maximize their profit. The persons who wrote DeCSS are better to > answers this and reveal the "facts". I don't think the two > German anonymous hackers will testify in front the court. Which will make > the DeCSS case weaker. > > >From reading the court precedings, there's tamper of evidence and false > information being injected. If we can hunt that down, we have a more > favorable position. > > My two cents. > > Kent Nguyen > > On Thu, 9 Mar 2000, Ron Gustavson wrote: > > > On Thu, 09 Mar 2000 13:27:40 EST, "Joshua Daub" wrote: > > > > >>So basically you are saying that as long as their is some means by >which I > > >>can make use of a DVD in a fair use context, then the access >control > > >>measure is not de facto eliminating fair use. > > > > > >All I am saying is: > > >1. It is possible to make a fair use without circumventing access control. > > > > > > But, with DVD, fair use is only enabled by a program that may or may not > > be included on the disc. (ie. navigation, rewind, pause, etc. might be > > disabled on any given title.) Wouldn't the lack of a standard and universal > > interface impact what can be considered fair use? > > > > >was transformative. However, I do recall several even more recent fair use > > >cases in the circuit courts involving fair use of photocopying for > > >educational purposes. A photocopying fair use case might provide some > > >authority for a non-transformative duplication of an entire work. > > > > If you can post the names of any of these under Legal issues #3 > > thread, perhaps some of us might be able to look them up for > > Robin's list (35 requested.) > > > > > > __________no-∞-do__________ > > > > -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:39:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17258 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:39:17 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA17255 for ; Thu, 9 Mar 2000 16:39:16 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA06690 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 16:52:19 -0600 Date: Thu, 9 Mar 2000 16:52:19 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] October 99 House Hearing Message-ID: <20000309165219.A6681@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000307134940.A31696@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <20000307134940.A31696@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu * apologies if you see this twice. I suspect majordomo at this the first time I sent it. * I just ran over a document I hadn't seen before, and buried as it was in GPO archives, I've mirrored it for easy access. It's a transcript of an October 1999 hearing before the Subcommittee on Telecommunications, Trade, and Consumer Protection of the Committee on Commerce, House of Representatives (whew!). It's interesting because it has a bunch of prepared remarks by the MPAA (Valenti), RIAA, HRRC, Rioport.com (Diamond Multimedia), Intel, etc. While it doesn't appear to have any direct bearing on the legal cases, it provides lots of good examples of how the MPAA and RIAA present their side of the argument. It's at http://www.reric.net/dvdlaw/hearing1.txt From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:46:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19621 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:46:31 -0500 Received: from tardis.offbeat.home (root@wintersprings-ubr-c3s1-174.cfl.rr.com [24.26.100.174]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA19618 for ; Thu, 9 Mar 2000 16:46:29 -0500 Received: (from jlc@localhost) by tardis.offbeat.home (8.9.3/8.9.3) id RAA02640 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 17:58:39 -0500 Date: Thu, 9 Mar 2000 17:58:39 -0500 From: "John L. Chmielewski" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? Message-ID: <20000309175839.A2636@tardis.offbeat.home> References: <20000309204416.76474.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <20000309204416.76474.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 03:44:16PM -0500, Joshua Daub wrote: > > >Wed, 8 Mar 2000 08:50:23 -0500 greslin@linuxpower.org wrote: > > >>--- Bryan Taylor wrote: > > >> Figuring out who has standing to sue when the authority is not defined > > >> in a meaningful way in the law is pretty difficult. At first I thought > > >> the points 1-3 in the memo were lame, but then I realized that it's the > > >> proper way to attack the defect in the law. > > >> > > >> How does the MPAA prove they are the correct party to bring suit? > > > > > >I doubt they have to; the filed complaint in the NY and CN suits state > >the > > >plaintiffs not as the MPAA, but as the individual copyright holders: > > >Universal, Disney, MGM, Tristar, Columbia, Time Warner and 20th Century > >Fox. > > > >Wouldn't the plantiff have to be the owner of the DVD copyright actually > >used with DeCSS, instead of the entire membership of the MPAA? > > > > The individual copyright owners are the plaintiffs. I would assume that the plantiff would need to be one whose DVD was used with DeCSS, not all the individual members of the MPAA. If they don't know which DVD's were used, then maybe this could be another reason to dismiss the complaint. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:49:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21131 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:49:06 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21121 for ; Thu, 9 Mar 2000 16:49:05 -0500 Received: from sympatico.ca (ppp5503.on.bellglobal.com [206.172.197.55]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id SAA18532 for ; Thu, 9 Mar 2000 18:07:32 -0500 (EST) Message-ID: <38C82F16.409B13DA@sympatico.ca> Date: Thu, 09 Mar 2000 18:09:10 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen wrote: > > I want to point out the things MPAA will use to win: > > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > the creation of DeCSS. > > 2) The MPAA will use this in their defense to say "our trade secrets were > stolen. Can't we have the protection of the government from stolen > intellectual property." You are seriously confused. Please do some reading first. The MPAA is the plaintiff in the DMCA case, which has nothing to do with trade secrets. DVD-CCA is the plaintiff in the trade secret case, which has nothing to do with either copyright or the MPAA. > 3) Which comes to the next point: DMCA. By using the stolen key, > hackers were able to create DeCSS. Following the logic by > using stolen trade secret or intellectual property to circumvent > protection scheme which by most people standard may agree that MPAA has a > point. Ummm, no. See above. > The above points are the most powerful arguments the plantiff will use to > defend its technology. With a patent given to CSS on December 1999 > (correct me if I'm wrong), they will use this as a way of argument in > addition to the above. Again, only if they actually claim patent infringment. This would be a wholly separate issue, and they haven't indicated that they will. We'll see. > Here's my question: > > How are we going to use the argument on the premise of "reverse > engineering", if the (Xing?) key was stolen? The key wasn't stolen. It was discovered. There's a difference. Reverse engineering was the method by which it was discovered. Reverse engineering is allowed, unless you contract out of your right to do so with a valid contract. It remains to be seen whether the Xing click-wrap license is valid (a) at all, and (b) in Norway. Get it? > I'm not sure what the facts is behind the Xing stolen key. Perhaps the > CSS and MPAA made the story up to incriminate the creator of DeCSS so > they can maximize their profit. The persons who wrote DeCSS are better to > answers this and reveal the "facts". I don't think the two > German anonymous hackers will testify in front the court. Which will make > the DeCSS case weaker. Your argument is incoherent and without foundation in the facts. There's little more to be said until you go through the ample documentation at the openlaw site, and in the archives of this list. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:49:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21144 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:49:07 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21125 for ; Thu, 9 Mar 2000 16:49:06 -0500 Received: from cdpage.com (ddsl104.dnvr.uswest.net [209.180.251.104]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id PAA11186 for ; Thu, 9 Mar 2000 15:02:26 -0800 (PST) Message-ID: <38C82D2A.538824B@cdpage.com> Date: Thu, 09 Mar 2000 16:00:58 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: Content-Type: multipart/alternative; boundary="------------D943DA7F80B116D5DDA5EBDC" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --------------D943DA7F80B116D5DDA5EBDC Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit You may have something here, but since you're starting from a false premise, it's irrelevant. The MPAA does not own CSS. The DVD CCA is the only entity able to bring action based on anything to do with CSS trade secrets. The DVD CCA is the licensing authority for CSS, which is actually owned by Matushita. The MPAA is bringing suit (actually in the names of its members) for circumventing what they are calling a copy protection mechanism (CSS) used with their copyrighted content. The DVD CCA was supposed to be comprised of representatives from the movie, consumer electronics, and computer industry. It is not, at this time. Most of this is in the FAQ. Kent Nguyen wrote: > I want to point out the things MPAA will use to win: > > > Dana J. Parker --------------D943DA7F80B116D5DDA5EBDC Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit You may have something here, but since you're starting from a false premise, it's irrelevant.

The MPAA does not own CSS. The DVD CCA is the only entity able to bring action based on anything to do with CSS trade secrets. The DVD CCA is the licensing authority for CSS, which is actually owned by Matushita. The MPAA is bringing suit (actually in the names of its members) for circumventing what they are calling a copy protection mechanism (CSS) used with their copyrighted content.

The DVD CCA was supposed to be comprised of representatives from the movie, consumer electronics, and computer industry. It is not, at this time.

Most of this is in the FAQ.

Kent Nguyen wrote:

I want to point out the things MPAA will use to win:
 
 
<snip>


Dana J. Parker
 
  --------------D943DA7F80B116D5DDA5EBDC-- From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 16:57:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22588 for dvd-discuss-outgoing; Thu, 9 Mar 2000 16:57:52 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA22585 for ; Thu, 9 Mar 2000 16:57:50 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id RAA06730 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 17:10:56 -0600 Date: Thu, 9 Mar 2000 17:10:56 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309171056.B6681@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <38cbf332.17858930@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 10, 2000 at 07:02:31AM -0800, Kent Nguyen wrote: * please fix your clock. or conceal your time machine usage. > I want to point out the things MPAA will use to win: > > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > the creation of DeCSS. > > 2) The MPAA will use this in their defense to say "our trade secrets were > stolen. Can't we have the protection of the government from stolen > intellectual property." The NY and CT plaintiffs, who are _members_ of the MPAA, will not be using this argument since (a) the allegedly stolen secret is not theirs, (b) they're not complaining of a trade secret theft, they're complaining about circumvention-device-trafficking under 17USC1201. You seem to be confusing the different cases. Please read the FAQ-in-progress at http://www.iag.net/~aleris/dvdfaq.txt > 3) Which comes to the next point: DMCA. By using the stolen key, > hackers were able to create DeCSS. Following the logic by > using stolen trade secret or intellectual property to circumvent > protection scheme which by most people standard may agree that MPAA has a > point. > > The above points are the most powerful arguments the plantiff will use to > defend its technology. With a patent given to CSS on December 1999 > (correct me if I'm wrong), they will use this as a way of argument in > addition to the above. You seem to have an awful lot of knowledge about what the plaintiffs are going to do. With all due respect, you should clarify what you know and what you're guessing about. What you seem to be getting at is: Q. Was the alleged Xing reverse engineering legal? A1. Probably, since it was likely done outside the U.S. A2. Probably, since it's hard to make click-through licenses binding. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:05:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23405 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:05:20 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23402 for ; Thu, 9 Mar 2000 17:05:19 -0500 Received: from 216-164-139-210.s464.tnt5.lnhva.md.dialup.rcn.com ([216.164.139.210]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12TCCJ-0000qr-00 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 18:18:28 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000309135708.K15370@duskglow.com> References: <20000309135708.K15370@duskglow.com> Date: Thu, 9 Mar 2000 18:18:07 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Fenwick and West: Advanced Copright Issues on the Internet Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >I haven't followed the link, bus is the misspelling of "advanced" intentional? > >--Russell > >On Thu, Mar 09, 2000 at 04:43:00PM -0500, Jeremy Erwin wrote: > > The following link leads to an interesting paper on copyright issues > > and digital transmission.It discusses the DMCA, and several > > alternative bills that did not pass. Interesting reading... > > http://www.fenwick.com/html/advenced_copyright_1999.htm > > > > Jeremy Erwin > Yes. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:06:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23525 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:06:14 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23521 for ; Thu, 9 Mar 2000 17:06:13 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id SAA22826 for ; Thu, 9 Mar 2000 18:19:20 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA17971; Thu, 9 Mar 2000 18:19:18 -0500 (EST) Date: Thu, 9 Mar 2000 18:19:18 -0500 (EST) Message-Id: <200003092319.SAA17971@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] What am I not getting? In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1988@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1988@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > They seem to be going after these guys > for theft of trade secret (theft is, > after all, still a crime). But if I > understand it correctly, these guys did > not break into any computers to steal > information, the reverse engineered > the technique. First, there are multiple lawsuits, under different law. The case we're spending most of our time discussing is the one in New York, where the MPAA is suing under a new law (loosely, the Digital Millenium Copyright Act; more properly, 17 USC 1201) which establishes very tight restrictions on how it is legal to produce (or distribute) programs which defeat the access controls on things like DVD movies, even if the means used to produce those programs are otherwise unimpeachably legal. The issue in that case isn't so much how DeCSS was produced, as what it does, and whether doing that is prohibited by 1201. The lawsuit in California *is* a trade secret case. One of the key issues there is that the plaintiffs claim that the people who did the reverse engineering were bound by a shrink-wrap license agreement that they would not reverse engineer the product. So, one of the key points of that case is whether or not shrink wrap licenses are binding in the jurisdictions where M.O.R.E. did the work --- which is probably either Norway (where Johansen lives) or Germany (where I *think* he says his collaborators are). HTH, rst From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:15:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24777 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:15:34 -0500 Received: from dial155.roadrunner.com (dial155.cybermesa.com [209.12.75.155]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA24772 for ; Thu, 9 Mar 2000 17:15:28 -0500 Received: (from paul@localhost) by dial155.roadrunner.com (8.8.7/8.8.7) id QAA06001 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 16:31:55 -0700 Date: Thu, 9 Mar 2000 16:31:54 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309163153.B4847@localhost> References: <20000309164506.6302.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000309164506.6302.qmail@hotmail.com>; from jadaub@hotmail.com on Thu, Mar 09, 2000 at 11:45:06AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 09, 2000 at 11:45:06AM -0500, Joshua Daub wrote: > > > >From: Steve Stearns > >Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA > > >Hmmmm... If this law does not provide an exemption for fair use, then it > >has de facto eliminated fair use from copyright law. All any media > >producer has to do is develop a minimalist copy protection measure, and > >suddenly I can remove all fair use rights for the media. They have given > >the right to regulate fair use to the producers of media. > > > > To a certain extent yes. There is no question that circumventing access > control is not fair use (under the law). However, one could still access > the underlying work in a manner that constitutes fair use. There is a > definite distinction between fair use and access. For example: What is the definite distinction between "access" and "performance"? I don't think a clear distinction exists. Access control sits right in between the acts of recording and playback. Sure, you can play the scambled data, fat lot of good that'll do. The Courts have (for example Griswold v. Connecticut 381 U.S. 479 (1965).) said that the first Amendment does not permit consideration of reading as an issue seperate from the right to speak (i.e. write). Access control is a bait-and-switch so Congress can expand regulation of reading/performance/playback while pretending that the balance between the First and Copyclause hasn't moved one bit. Ok, you say, this guy isn't even talking about fair use. But it isn't that clear one way or the other: Congress puts _public_ performance in 17 USC 106(4,6). They put "display" in (5). They put "distribute" in (3). They put duplication into (1) and derivatives into (2). 17 USC 106 is a big garbage can, into which Congress dumped all sorts of _physically_ unrelated activites. That wouldn't be so bad from a legal perspective, if only people would remember that copyright law is about more than the _physical_ act of copying. Infringement is about display, performance, and everything else in 106. When Congress took the Judge-made historical "fair use" (which incidentally isn't just one thing, even historically), and "codified" it in the 1976 Copyright Act they didn't say "private performance is in all cases fair use exempt from 106." But Griswold says that Congress can never put _private_ in 106(4). The fact that they didn't explicitly mention "private" in 107 just clouds the statutory situation. It certainly doesn't demonstrate that private performance is _not_ fair use: 17 USC 107: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ phonorecords or by any other means specified by that section, for ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - Fair use isn't just about copying. The second underlined section means that all the exclusive right in 106 can have fair use exceptions. Conceivably, that includes _public_ performance. If you look in the specialized fair use sections (108 -> 120), the situation is even muddier. If you search 107 -> 120, there are plenty of places where private "use," of say a phonorecord, 108(d), is made a condition for its duplication by a library. Same for retransmission of broadcasts in a hotel (i.e. private viewing) 17 USC 111(1). So, Congress passes the DMCA, and mysteriously, they are regulating all performance, even though the _public_ version is in 106(4), and 107 disclaims authority over things not regulated in 106. While every one was concentrating on the word "copy" in copyright, Congress enacted a law that regulates all performance, public or private. That's the domain of 106(4) in the public case. Griswold says Congres has to keep their hands out of the reading cookie jar. With 1201 they stuck both hands in, emptied the cook jar, and switched in something called access. The only way in which I see access differing from performance is in the case that a service like cable TV is being delivered. But that instance is already regulated by 47 USC 553, 605. In the context of a purchased, leased or loaned work (i.e. after first sale, and after first publication), "access" is just Orwell-speak for "performance". I don't see any basis to make a sweeping statment like: "There is a definite distinction between fair use and access." The issues are more subtle than that. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:17:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24965 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:17:48 -0500 Received: from mail3.teleport.com (mail3.teleport.com [192.108.254.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA24930 for ; Thu, 9 Mar 2000 17:17:46 -0500 Received: (qmail 21216 invoked from network); 9 Mar 2000 23:29:04 -0000 Received: from i48-06-32.pdx.du.teleport.com (HELO ?216.26.2.68?) (216.26.3.96) by mail3.teleport.com with SMTP; 9 Mar 2000 23:29:04 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <38C7FAE2.9020606@bigbrother.net> References: <20000309124241.A5833@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Date: Thu, 9 Mar 2000 15:30:23 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: Re: [dvd-discuss] region locking argument Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 11:26 AM -0800 3/9/2000, Steve Stearns wrote: >Well, the thing is that the region locking is an entirely seperate issue >because DeCSS does not implement the region coding.Ý The region coding >is handled by a a byte of data on the disc which most DVD players are >designed to read and proceed to enforce the region restrictions. Yes, but: 1) Player manufacturers must license CSS from the DVD-CCA 2) Therefore, the DVD-CCA can extract concessions from player manufacturers. 3) These concessions generally include the requirement that consumer players honor the region encoding. Therefore, as long as CSS remains the exclusive property of the DVD-CCA, region locking can be enforced. If DeCSS is legal (and therefore it's possible to write player software that decodes CSS, without getting a license from DVD-CCA and agreeing to abide by its terms), then region locking is no longer enforceable by this strategy of controlling the player market. It's a separate issue technically, but not in practice. (The alert reader might also note that DVD-CCA could use the leverage provided to require other features - in fact already does, I believe. My suspicion is that at some point in the future, one of the required features will be refusal to play non-CSS-encoded DVDs, thus making CSS into an "artist control" measure.) (It also may be worth noting that any access-control measure could be tied to other measures in this way.) -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:20:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25251 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:20:16 -0500 Received: from tomts2-srv.bellnexxia.net (tomts2.bellnexxia.net [209.226.175.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA25248 for ; Thu, 9 Mar 2000 17:20:15 -0500 Received: from sympatico.ca ([206.172.197.55]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000309233251.GLPZ17030.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Thu, 9 Mar 2000 18:32:51 -0500 Message-ID: <38C83648.CBBA69DA@sympatico.ca> Date: Thu, 09 Mar 2000 18:39:52 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: <20000309221708.15071.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > Give me one avenue of legal reasoning that is not a dead end. I have a > sneaking suspicion (well, alright, I know) that this is exactly why Congress > enacted the anti circumvention portion of the DMCA. So I think arguing that > this is allowed under the DMCA is foolish. You haven't been paying attention. I do understand - it is cumbersome to walk into a discussion that has been going on for weeks in the midpoint, and actually go through the archives to catch yourself up. Here are some non-dead-end ideas: (1) This circumventing device does not fit into 1201(a)(2) because it is primarily used for "authorized" circumvention as required by the Act. If DeCSS is used to view a legally purchased DVD, the purchase price is consideration for the "authorization". See my post of Saturday March 4 with the subject "Authorization: Another way of seeing it" for a more elaborate explanation. I personally think this is the best of the bunch, despite the absense of substantial comment. (2) If the circumventing device does fit within 1201(a)(2), it fits within the exception in 1201(f)(2). The line that Congress drew in the legislative history between "programs" and "copyrighted materials" is a blurred and inconsistent one, and is a false distinction in this case. This obvously needs some work, but it is not, in my opinion, a dead end. (3) The anti-circumvention provisions in 1201 are applied without regard to actual copyright infringment, but give rise to a cause of action on condition that one -is- the copyright owner. As such, 1201 has the sole effect of protecting a monopoly the licensing of circuventing devices. This exceeds the bounds of copyright protection (which in itself is not a difficulty) and clearly extends the rights of the copyright owner beyond the protection of expression, but to the idea contained in the licensed circumvention device. A monopoly on such a licensing regime is not expressly protected by statute, and is inconsistent with the stated scope of copyright protection expressed in 17USC102(b): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Again, this one needs some work, but it it a re-formulation of the same point made by the Defendants the other day in the Conneticut Hughes case in point 9: > 9. Plaintiffs are misusing their copyright. The DMCA cannot be used to > extend the copyright of copyright holder beyond its scope to affect > marketing power in another area. Plaintiffs are attempting to extend > power over exhibition software, which is a different area than that > protected by their copyrights. Further, the plaintiffs are attempting > to dictate the business model of Linux, owned by its community of > users, to prevent the creation of alternative platforms for operation > of DVD discs. [Discussion of US v Paramount & legislative history > decrying "pay-per-access" followed] This is a new argument which hasn't been flushed out in the mailing list, but I think it's promising. Also, the EFF have their pet Constitutional arguments. I personally think they're loser arguments, but they're worth (another) shot. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26909 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:32:59 -0500 Received: from mail.swlaw.edu (mail.swlaw.edu [205.184.104.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA26906 for ; Thu, 9 Mar 2000 17:32:58 -0500 Received: by mail.swlaw.edu from localhost (router,SLMail V3.1); Thu, 09 Mar 2000 15:50:40 -0800 Received: by mail.swlaw.edu from swlaw.edu [205.184.104.25] (SLmail 3.1.2948 (Release Build)); Thu, 09 Mar 2000 15:50:39 -0800 Message-ID: <38C837E2.3ABB7908@swlaw.edu> Date: Thu, 09 Mar 2000 15:46:42 -0800 From: "Ammon Dorny" X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> <38C72E68.36E737CF@swlaw.edu> <38C7D39F.500837D4@sympatico.ca> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ian, thanks for the note of encouragement, it is difficult wading through that much discussion. cheers, Ammon Dorny http://home.earthlink.net/~adorny/ PS Nice link on your home page to the "ghouls" 1 ;) and nice screenshots of Afterstep. I use Windowmaker myself! Ian Hay wrote: > > Ammon Dorny wrote: > > > > Hello all, > > > > Rob, excellent point and well put. If I understand the whole premise to > > this forum, more eyeballs a better argument makes. There is a > > noticeable lack of emphasis on help obscuring, propagandizing, > > distracting or anything else that clouds the issues. It only takes one > > or two people to achieve that. > > > > I am a third year law student trying to catch up on the archive > > discussion after being alarmed by todays Wired article. > > > > Ammon Dorny > > http://home.earthlink.net/~adorny/ > > Hi Ammon - > > Just to note: it's really encouraging to have you here. IMHO, we need > more law students on this list, so PLEASE don't go away. > -- > ____ > | | Ian R. Hay > |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:36:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27122 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:36:22 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA27118 for ; Thu, 9 Mar 2000 17:36:20 -0500 Received: (qmail 9086 invoked by uid 500); 10 Mar 2000 17:25:53 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 10 Mar 2000 17:25:53 -0000 Date: Fri, 10 Mar 2000 09:25:53 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000309171056.B6681@thud.reric.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Eric Seppanen wrote: > On Fri, Mar 10, 2000 at 07:02:31AM -0800, Kent Nguyen wrote: > > * please fix your clock. or conceal your time machine usage. Does time really matter. :) > > > I want to point out the things MPAA will use to win: > > > > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > > the creation of DeCSS. > > > > 2) The MPAA will use this in their defense to say "our trade secrets were > > stolen. Can't we have the protection of the government from stolen > > intellectual property." > > The NY and CT plaintiffs, who are _members_ of the MPAA, will not be using > this argument since (a) the allegedly stolen secret is not theirs, (b) > they're not complaining of a trade secret theft, they're complaining about > circumvention-device-trafficking under 17USC1201. > > You seem to be confusing the different cases. Please read the > FAQ-in-progress at http://www.iag.net/~aleris/dvdfaq.txt "Access to CSS technology was thus obtained in violation of the specific provision in the Xing end-user license "click wrap" agreement which prohibits reverse engineering. " (section 5) Lawsuit file by the DVD-CA - http://newyen.com/dvd/dvd.htm I guessed I use the name DVD-CA and MPAA interchangeable. Right they are on the same team. Jack Valenti use the word "thief". Not sure what he meant from that. Does he mean "thief" in terms of stealing Xing key or "thief" as in pirating movies? > > > 3) Which comes to the next point: DMCA. By using the stolen key, > > hackers were able to create DeCSS. Following the logic by > > using stolen trade secret or intellectual property to circumvent > > protection scheme which by most people standard may agree that MPAA has a > > point. > > > > The above points are the most powerful arguments the plantiff will use to > > defend its technology. With a patent given to CSS on December 1999 > > (correct me if I'm wrong), they will use this as a way of argument in > > addition to the above. > > You seem to have an awful lot of knowledge about what the plaintiffs are > going to do. With all due respect, you should clarify what you know and > what you're guessing about. > > What you seem to be getting at is: > Q. Was the alleged Xing reverse engineering legal? > A1. Probably, since it was likely done outside the U.S. > A2. Probably, since it's hard to make click-through licenses binding. > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:41:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28262 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:41:43 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28258 for ; Thu, 9 Mar 2000 17:41:41 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id QAA19498 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 16:05:37 -0800 Date: Thu, 9 Mar 2000 16:05:37 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000309160537.N15370@duskglow.com> References: <38cbf332.17858930@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from kent@newyen.com on Fri, Mar 10, 2000 at 07:02:31AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Please do not use DVD-CCA and MPAA interchangeably, because they are not, and this distinction could theoretically prove to be very important. --Russell On Fri, Mar 10, 2000 at 07:02:31AM -0800, Kent Nguyen wrote: > I want to point out the things MPAA will use to win: > > 1) The (Xing?) key was a deliberate stolen "trade secret" which enables > the creation of DeCSS. > > 2) The MPAA will use this in their defense to say "our trade secrets were > stolen. Can't we have the protection of the government from stolen > intellectual property." > > 3) Which comes to the next point: DMCA. By using the stolen key, > hackers were able to create DeCSS. Following the logic by > using stolen trade secret or intellectual property to circumvent > protection scheme which by most people standard may agree that MPAA has a > point. > > The above points are the most powerful arguments the plantiff will use to > defend its technology. With a patent given to CSS on December 1999 > (correct me if I'm wrong), they will use this as a way of argument in > addition to the above. > > Here's my question: > > How are we going to use the argument on the premise of "reverse > engineering", if the (Xing?) key was stolen? > > Reverse engineering as I understand it, is the process to decipher the > technology without any stolen intellectual property. Which is why > Connectix won the case against Sony. They did it through pure intelligent. > > =================== > My opinion: > > I'm not sure what the facts is behind the Xing stolen key. Perhaps the > CSS and MPAA made the story up to incriminate the creator of DeCSS so > they can maximize their profit. The persons who wrote DeCSS are better to > answers this and reveal the "facts". I don't think the two > German anonymous hackers will testify in front the court. Which will make > the DeCSS case weaker. > > >From reading the court precedings, there's tamper of evidence and false > information being injected. If we can hunt that down, we have a more > favorable position. > > My two cents. > > Kent Nguyen > > > On Thu, 9 Mar 2000, Ron Gustavson wrote: > > > On Thu, 09 Mar 2000 13:27:40 EST, "Joshua Daub" wrote: > > > > >>So basically you are saying that as long as their is some means by >which I > > >>can make use of a DVD in a fair use context, then the access >control > > >>measure is not de facto eliminating fair use. > > > > > >All I am saying is: > > >1. It is possible to make a fair use without circumventing access control. > > > > > > But, with DVD, fair use is only enabled by a program that may or may not > > be included on the disc. (ie. navigation, rewind, pause, etc. might be > > disabled on any given title.) Wouldn't the lack of a standard and universal > > interface impact what can be considered fair use? > > > > >was transformative. However, I do recall several even more recent fair use > > >cases in the circuit courts involving fair use of photocopying for > > >educational purposes. A photocopying fair use case might provide some > > >authority for a non-transformative duplication of an entire work. > > > > If you can post the names of any of these under Legal issues #3 > > thread, perhaps some of us might be able to look them up for > > Robin's list (35 requested.) > > > > > > __________no-∞-do__________ > > > > -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 17:55:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29800 for dvd-discuss-outgoing; Thu, 9 Mar 2000 17:55:31 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA29797 for ; Thu, 9 Mar 2000 17:55:30 -0500 Received: (qmail 9288 invoked by uid 500); 10 Mar 2000 17:45:02 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 10 Mar 2000 17:45:02 -0000 Date: Fri, 10 Mar 2000 09:45:02 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] An analogy. In-Reply-To: <38C82D2A.538824B@cdpage.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Food for thought: My apartment has a door lock and a key. If someone breaks into my apartment and steal my keys and make duplicate and give it away. That's thief which I think DVD-CA is trying to come at. In analogy. Xing key is a licensed key. If someone cracked the code and put the licensed key in DeCSS. That's like duplicating the licensed keys and give it to everybody to benefit. What's unique about this case is DeCSS has only one licensed key which specifically aim at the Xing license. This is like selling software with serial number. The serial number uniquely identify the software. How would you go about arguing this point? Kent From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 18:01:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30115 for dvd-discuss-outgoing; Thu, 9 Mar 2000 18:01:33 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30112 for ; Thu, 9 Mar 2000 18:01:32 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 9 Mar 2000 16:14:48 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1989@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Thu, 9 Mar 2000 16:14:47 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From what I understood, the Xing key was not stolen. It was published -- by mistake perhaps -- in the clear instead of being encrypted. Xing may have some liability for not adhering to the proper techniques ... but the -use- of the Xing key is not theft. It was freely readable. -Richard M. Hartman hartman@onetouch.com 186,000 mi/sec: not just a good idea, it's the LAW! > -----Original Message----- > From: Kent Nguyen [SMTP:kent@newyen.com] > Sent: Friday, March 10, 2000 7:03 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA > > Here's my question: > > How are we going to use the argument on the premise of "reverse > engineering", if the (Xing?) key was stolen? > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 18:13:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31833 for dvd-discuss-outgoing; Thu, 9 Mar 2000 18:13:18 -0500 Received: from mtiwmhc27.worldnet.att.net (mtiwmhc27.worldnet.att.net [204.127.131.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31830 for ; Thu, 9 Mar 2000 18:13:17 -0500 Received: from alaptop.hotwired.com ([12.78.178.22]) by mtiwmhc27.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000310002623.DESZ24363.mtiwmhc27.worldnet.att.net@alaptop.hotwired.com> for ; Fri, 10 Mar 2000 00:26:23 +0000 Message-Id: <4.3.0.20000309192329.0242ac10@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 09 Mar 2000 19:24:35 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <38C82F16.409B13DA@sympatico.ca> References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sigh. You're both wrong. The MPAA is not the plaintiff in either case. Neither of you has read the court documents. The conversation has been going downhill here every day. Has anyone even posted answers to Robin's questions sent last Firday yet? -Declan At 18:09 3/9/2000 -0500, Ian Hay wrote: > > 2) The MPAA will use this in their defense to say "our trade secrets were > > stolen. Can't we have the protection of the government from stolen > > intellectual property." > >You are seriously confused. Please do some reading first. The MPAA is >the plaintiff in the DMCA case, which has nothing to do with trade >secrets. DVD-CCA is the plaintiff in the trade secret case, which has >nothing to do with either copyright or the MPAA. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 18:30:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01519 for dvd-discuss-outgoing; Thu, 9 Mar 2000 18:30:32 -0500 Received: from dial135.roadrunner.com (dial135.cybermesa.com [209.12.75.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01516 for ; Thu, 9 Mar 2000 18:30:30 -0500 Received: (from paul@localhost) by dial135.roadrunner.com (8.8.7/8.8.7) id RAA06375 for dvd-discuss@eon.law.harvard.edu; Thu, 9 Mar 2000 17:46:51 -0700 Date: Thu, 9 Mar 2000 17:46:51 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ: What is a patent? (2.11.1) Message-ID: <20000309174650.C4847@localhost> References: <20000309204416.76474.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from sam@bur-jud-118-039.rh.uchicago.edu on Thu, Mar 09, 2000 at 04:06:04PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have a suggestion that I think might clarify things for the novice reader. On Thu, Mar 09, 2000 at 04:06:04PM -0600, sam th wrote: > Trade secrets are also much different than patents. First, patents > are necessarily published as a part of the submission process, while > trade secrets by definition are not. In fact, trade secrets must be > protected in order to be valid and enforceable. Second, the idea ^^^^^^^^^ > or concept behind a trade secret is not neccesarily protected. If ^^^^^^^^^ You've used the word "protected" in two different ways here, in the first instance to mean "private" and in the second instance to mean "with force of law". How about, "First, the holder of a trade secret has a certain amount of responsibility to safe-guard that secret from disclosure. Second, trade-secret status does not prevent another party from using the secret idea or concept if they arrive at it independently"? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 18:39:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03246 for dvd-discuss-outgoing; Thu, 9 Mar 2000 18:39:29 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA03243 for ; Thu, 9 Mar 2000 18:39:28 -0500 Received: from bugbug (max01-56.suba.com [206.69.121.248]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA12857 for ; Thu, 9 Mar 2000 18:52:32 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Thu, 9 Mar 2000 18:51:38 -0600 Message-ID: <000801bf8a2a$cae184e0$f87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 In-Reply-To: <20000309083203.A4209@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore > Sent: Thursday, March 09, 2000 9:32 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] ACCESS as USE > > > On Thu, Mar 09, 2000 at 08:54:19AM -0600, sparky wrote: > > Again, we could argue that fair use applies *because* DVDs are tangible > > media, and it is precisely this sort of work for which fair use > is allowed. > > Show that DeCSS, though access control circumvention, only > circumvents on > > media (not on service), AND that the access control restricts > normal fair > > use practices (list em off: right to copy (backup), right to copy in a > > different format, isn't there a right to reverse engineer as > long as it's > > not an infringing use - and "access" is not included as one of > the explicit > > reserved rights for copyright holders in 17 USC), and you have a pretty > > clear indication that DeCSS can be used in non-infringing ways. > Because of > > this, there can be no substance to the trafficking charge. > > The legal point of no return for the copyholder should be "first sale". > > The legal point beyond which the public should not be allowed to go is > past the copyholder's right-not-to-publish (~ right to first publication). > > These are established principles, that don't require introducing a "new" > legal criterion. I don't know if you've noticed this, because it seems you are criticizing me.. but I'm not talking about "access as use" anymore (my only "new" criterion). The title of the string and the fact that I started it may be misleading you. You are saying here exactly what I am saying, but in a different way. The way I would say it is: because the DVDs in question store copyrighted works fixed on the DVD, then WHEN THEY ARE SOLD the copyright holder's exclusive right ends, and fair use rules now apply (= your first sale statement). Obviously this is well established in the law. What is not well established is the specific permission to access the work, the nature of the permission, etc. We can argue that the sale of the work is implicit permission to access the work (I can't remember offhand if this was your argument or Bryan's), but the MPAA will make the distinction in court that permission to circumvent their access control and permission to view the movie on a DVD are totally different, and their argument I am sure will meet with some recognition by the judge. But if we argue that a) fair use standards/laws apply for all sold DVDs, b) DeCSS only can be used on bought media to which these standards apply, and c) the MPAA's access control restricts uses which are non-infringing, then d) will be true: DeCSS has non-infringing uses, which we can elucidate, and the MPAA will have a hard time winning. > > Fair use is defined in the statutory sense in 17 USC 107 -> 119 (120?). > Access is not an explicit part of statutory fair use because in the > context of copyright, it is new. (There are also issues of what the > bill's authors were after --- we guess about that from the text of > the law and the Congressional record --- but we don't know for > _certain_ where they thought they were going. There is too much stuff > in the law that is contradictory for me to believe that they really > understood what they were doing.) This is, I think, the opportunity that requires us to aggressively argue in this case how the judge is to interpret the law. The MPAA is going to go for an unglossed reading: "Circumvention wrong. Permission required. Permission not given. DeCSS do what we say it do. Mongo win case!" The defense needs to have a clearly thought-out approach to address this way of reading the law and show that it is incorrect. IMHO this will be the only way to open the door to make all our other arguments, which are great, stick. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 20:03:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19698 for dvd-discuss-outgoing; Thu, 9 Mar 2000 20:03:06 -0500 Received: from tomts2-srv.bellnexxia.net (tomts2.bellnexxia.net [209.226.175.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA19695 for ; Thu, 9 Mar 2000 20:03:05 -0500 Received: from sympatico.ca ([206.172.198.234]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000310021541.HRAU17030.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Thu, 9 Mar 2000 21:15:41 -0500 Message-ID: <38C85C72.134F2702@sympatico.ca> Date: Thu, 09 Mar 2000 21:22:42 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: <4.3.0.20000309192329.0242ac10@pop.webcom.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan McCullagh wrote: > > Sigh. You're both wrong. The MPAA is not the plaintiff in either case. > Neither of you has read the court documents. You must be smoking something interesting if you don't think -I- have read the court documents thoroughly. I understand that the named plaintiffs are in fact the individual motion picture production studios. It was easier to simplify an explanation for someone who, frankly, needs spoonfeeding. That having been said, even J. Kaplan thought it convenient enough to refer to them collectively as the MPAA at more than one point in his memorandum opinion. > The conversation has been going downhill here every day. Has anyone even > posted answers to Robin's questions sent last Firday yet? Your attitude here shows the same selectivity as your recent article that discussed this very mailing list. The same impatience too. Robin's questions are not easy to answer, nor are they easy to research. The ratio of people trained in useful legal research to the number of people willing to participate in any way they can is, unfortunately, not very large. Further, many of the questions she's asked -have- been given specific attention, though the evidence of that may be spread across many messages. Opening a mailing list is not magic pixie dust. Your wildly unrealistic expectation of 'instant' progress is going to have to go unsatiated. > At 18:09 3/9/2000 -0500, Ian Hay wrote: > > > 2) The MPAA will use this in their defense to say "our trade secrets were > > > stolen. Can't we have the protection of the government from stolen > > > intellectual property." > > > >You are seriously confused. Please do some reading first. The MPAA is > >the plaintiff in the DMCA case, which has nothing to do with trade > >secrets. DVD-CCA is the plaintiff in the trade secret case, which has > >nothing to do with either copyright or the MPAA. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 20:06:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19938 for dvd-discuss-outgoing; Thu, 9 Mar 2000 20:06:18 -0500 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA19935 for ; Thu, 9 Mar 2000 20:06:17 -0500 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA05198 for ; Thu, 9 Mar 2000 18:17:47 -0800 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id RAA17252; Thu, 9 Mar 2000 17:41:36 -0800 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Date: 9 Mar 2000 17:41:18 -0800 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8a9jru$gr3$1@blowfish.isaac.cs.berkeley.edu> References: <200003072052.PAA04078@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article , Sampo A Syreeni wrote: > Comes to my mind, do we have any examples of reverse engineering of > *cryptography* based access controls which have facilitated the advancement > of technology and/or public good? Sure. See my declaration to the California court for a few. (Netscape web browser, cellphones all over the world, etc.) The reverse engineering involved in the Netscape discovery, for instance, facilitated improvements that greatly improved the security of the browser. See http://www.ddj.com/articles/1996/9601/9601h/9601h.htm From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 21:55:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01725 for dvd-discuss-outgoing; Thu, 9 Mar 2000 21:55:58 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA01722 for ; Thu, 9 Mar 2000 21:55:57 -0500 Received: from bugbug (max01-31.suba.com [206.69.121.223]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id WAA19712 for ; Thu, 9 Mar 2000 22:09:02 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Self Introduction Date: Thu, 9 Mar 2000 22:08:08 -0600 Message-ID: <000601bf8a46$3e7bae60$df7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000308195018.C25642@ix.netcom.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Karsten, if you want an easier catch up than reading posts one at a time, go to http://www.zenadmen.com/anti1201. This is my website and strings of posts are stored there as single documents. IT is not totally up to date but I am hoping to rectify that this weekend. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of > kmself@ix.netcom.com > Sent: Wednesday, March 08, 2000 9:50 PM > To: dvd-discuss > Subject: [dvd-discuss] Self Introduction > > > A quick hello to the list. > > I'm a Linux user, part time legal buff, non-lawyer, and have been > following copyright and patent issues relating open source/free software > for the past several years. > > I'm currently hacker/evangelist for OpenSales, > http://www.opensales.org/, though I'm here as myself. > > I organized and moderated the DVD/DeCSS panel at LWE in New York this past > February (hi, Allonn, and others) -- with a lot of help from others, . > Had heard about the OpenLaw site and finally signed on after reading > Declan's Wired article this afternoon. > > Nice FAQ that's been put together, time to catch up on the archives . > > -- > Karsten M. Self (kmself@ix.netcom.com) > What part of "Gestalt" don't you understand? > > Scope out Scoop: http://scoop.kuro5hin.org/ > Nothin' rusty about Kuro5hin: http://www.kuro5hin.org/ > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 22:01:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02317 for dvd-discuss-outgoing; Thu, 9 Mar 2000 22:01:27 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02314 for ; Thu, 9 Mar 2000 22:01:26 -0500 Received: from bugbug (max01-31.suba.com [206.69.121.223]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id WAA19871 for ; Thu, 9 Mar 2000 22:14:31 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Another Suggestion Date: Thu, 9 Mar 2000 22:13:37 -0600 Message-ID: <000901bf8a47$026be600$df7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <38C7DE86.233DEA76@pmbs.net> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for volunteering. You're a pal. Report back in a week? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Steven > Sanders > Sent: Thursday, March 09, 2000 11:25 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Suggestion > > > Hi, > I'm not an attorney. I've been in seven lawsuits in the past 10 years. I > know who looses. I know how the most money presents the best defense. > > I suggest you start a web site to get money which: > > 1. Gives users some value. > 2. Explains how everyone on the internet looses if the movie > people looses. > 3. Explains how this is just the tip of the iceburg of what will follow > if you loose. > 4. Appeal for hundreds of thousands of people to each send in $10–100. > (I'll send in $100.) > 5. Perhaps get popular, existing websites to piggyback your cause for > donations. (Napster through advertising?) > > The internet is the ideal way to do this since you need money FAST. > A consolidated team of attorneys is better than a cabre of people, each > with varying degree of commitment. > > Sincerely, > Steven Sanders > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 9 22:30:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04978 for dvd-discuss-outgoing; Thu, 9 Mar 2000 22:30:00 -0500 Received: from mybox.nadia (pool0572.cvx12-bradley.dialup.earthlink.net [209.179.228.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA04975 for ; Thu, 9 Mar 2000 22:29:57 -0500 Received: from swlaw.edu (localhost.localdomain [127.0.0.1]) by mybox.nadia (Postfix) with ESMTP id 895E319262 for ; Thu, 9 Mar 2000 20:42:43 -0800 (PST) Message-ID: <38C87D43.F9D3F1E5@swlaw.edu> Date: Thu, 09 Mar 2000 20:42:43 -0800 From: Ammon Dorny X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.14-15mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fair use has not been eliminated, it appears the thinking is like this 1) legitimate access is required before fair use can be discussed 2) No legitimate access, no discussion of fair use 3) therefore you cannot say fair use is gone (dear god I hope it is not) cheers, Ammon Dorny Steve Stearns wrote: > > > Section 107 of the Act provides in critical part that certain uses of > > copyrighted works that otherwise would be wrongful are "not > > . . . infringement[s] of copyright.''28 Defendants, however, are not > > here sued for copyright infringement. They are sued for offering to > > the public and providing technology primarily designed to circumvent > > technological measures that control access to copyrighted works and > > > otherwise violating Section 1201(a)(2) of the Act. If Congress had > > ^^^^^^^^^^^^^^^ > > meant the fair use defense to apply to such actions, it would have > > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > said so. > > ^^^^^^^ > > Hmmmm... If this law does not provide an exemption for fair use, then it > has de facto eliminated fair use from copyright law. All any media > producer has to do is develop a minimalist copy protection measure, and > suddenly I can remove all fair use rights for the media. They have given > the right to regulate fair use to the producers of media. > > ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 01:12:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA17049 for dvd-discuss-outgoing; Fri, 10 Mar 2000 01:12:55 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA17046 for ; Fri, 10 Mar 2000 01:12:54 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id BAA09822 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 01:26:01 -0600 Date: Fri, 10 Mar 2000 01:26:01 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Self Introduction Message-ID: <20000310012601.A9783@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000308195018.C25642@ix.netcom.com> <000601bf8a46$3e7bae60$df7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <000601bf8a46$3e7bae60$df7945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Why do you feel this is superior to the threaded archives at http://eon.law.harvard.edu/archive/dvd-discuss/threads.html ? They're automatically maintained, so there's zero work involved and no chance for human error. They track every thread. If you want to single out important points, maybe it would make sense to simply link back to the original messages on eon.law.harvard.edu... I fear you're wasting your time here. On Thu, Mar 09, 2000 at 10:08:08PM -0600, sparky wrote: > Karsten, if you want an easier catch up than reading posts one at a time, go > to http://www.zenadmen.com/anti1201. This is my website and strings of posts > are stored there as single documents. IT is not totally up to date but I am > hoping to rectify that this weekend. > > sparky > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 02:18:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20875 for dvd-discuss-outgoing; Fri, 10 Mar 2000 02:18:57 -0500 Received: from smtp10.atl.mindspring.net (smtp10.atl.mindspring.net [207.69.200.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20872 for ; Fri, 10 Mar 2000 02:18:56 -0500 From: kmself@ix.netcom.com Received: from navel (sji-ca41-70.ix.netcom.com [209.111.208.70]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with ESMTP id DAA06844 for ; Fri, 10 Mar 2000 03:31:59 -0500 (EST) Received: from karsten by navel with local (Exim 3.12 #1 (Debian)) id 12TKps-0000EN-00 for ; Fri, 10 Mar 2000 00:31:52 -0800 Date: Fri, 10 Mar 2000 00:31:52 -0800 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Self Introduction Message-ID: <20000310003152.A879@ix.netcom.com> Mail-Followup-To: karsten, dvd-discuss@eon.law.harvard.edu References: <20000308195018.C25642@ix.netcom.com> <000601bf8a46$3e7bae60$df7945ce@bugbug.WinNATDomain> <20000310012601.A9783@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.1.5i In-Reply-To: <20000310012601.A9783@thud.reric.net>; from eds@reric.net on Fri, Mar 10, 2000 at 01:26:01AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've found the newsgroup archives, and actually wouldn't mind if someone's been keeping a list of more relevant posts. Volume's rather high. On Fri, Mar 10, 2000 at 01:26:01AM -0600, Eric Seppanen wrote: > Why do you feel this is superior to the threaded archives at > > http://eon.law.harvard.edu/archive/dvd-discuss/threads.html > > ? > > They're automatically maintained, so there's zero work involved and no > chance for human error. They track every thread. If you want to single > out important points, maybe it would make sense to simply link back to the > original messages on eon.law.harvard.edu... I fear you're wasting your > time here. > > On Thu, Mar 09, 2000 at 10:08:08PM -0600, sparky wrote: > > Karsten, if you want an easier catch up than reading posts one at a time, go > > to http://www.zenadmen.com/anti1201. This is my website and strings of posts > > are stored there as single documents. IT is not totally up to date but I am > > hoping to rectify that this weekend. > > > > sparky > > -- Karsten M. Self (kmself@ix.netcom.com) What part of "Gestalt" don't you understand? Scope out Scoop: http://scoop.kuro5hin.org/ Nothin' rusty about Kuro5hin: http://www.kuro5hin.org/ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 04:29:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA26343 for dvd-discuss-outgoing; Fri, 10 Mar 2000 04:29:59 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA26340 for ; Fri, 10 Mar 2000 04:29:58 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id MAA24973 for ; Fri, 10 Mar 2000 12:43:04 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 12:43:03 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <20000308215446.63629.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 8 Mar 2000, Joshua Daub wrote: >2. Generally, there is no copyright protection in databases (straight lists >such as a phonebook). OK. I'll take your word for it. But the point is still somewhat relevant: if a censorware product encrypts files with intermixed under protection/unprotected material, we have a situation very similar to DVD's were at least some of the material under CSS probably isn't copyright protected. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 05:30:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA30339 for dvd-discuss-outgoing; Fri, 10 Mar 2000 05:30:10 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA30336 for ; Fri, 10 Mar 2000 05:30:08 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id NAA05236 for ; Fri, 10 Mar 2000 13:43:15 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 13:43:15 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE - long! sorry! In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Steve Stearns wrote: >A good point! The big concern that the MPAA has is the notion of perfect >digital copies being easy to make and distribute. What happens when your >cable or satellite provider is broadcasting perfect digital copies of your >favorite Sopranos episodes? Are you not allowed to record them? How >would this be any different than duplicating a DVD? This is precisely why 1201 now exists. To deal with this, the MPAA needs to be sure that no equipment capable of accessing such perfect digital representations will play along in an attempt to copy. This can mostly be accomplished by encryption tecnology with DVD CCA like intricate licencing deals (remember, there are plans to create a 'secure' digital transport for video on top of FireWire), except for the possibility of somebody breaking the encryption and tapping in. This is why we now have 1201. >As the availability of high quality digital broadcasts and cheap digital >recording devices and media increase, there is a threat that we will all >lose the right to record or copy anything. What happens when your cable >company doesn't want you to record a show and implements a CSS like >protection of the cable data streams? What happens if no norweigans are >able to crack that protection? Does your right to record, established in >case law many years ago, cease to exist? This is MPAA's aim, of course. And for the same price the companies get what is effectively a perpetual copyright. Kind of reminds me of all the friendly legistlation enacted 'to protect the children'. Perhaps these concerns should make their way into the FAQ as suspicious motives for the existence of DMCA. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 05:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA30425 for dvd-discuss-outgoing; Fri, 10 Mar 2000 05:32:59 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA30422 for ; Fri, 10 Mar 2000 05:32:58 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id NAA05686 for ; Fri, 10 Mar 2000 13:46:05 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 13:46:05 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Legal issues #3 In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Steve Stearns wrote: >I think this brings up an important distinction. When a satellite >broadcaster sends a signal, who owns that signal? My presumption would be >that they do since they are sending it over frequencies licensed to them >by the government. By the same argument somebody could sell you (or not) the right to watch in the direction of something they have created. Buying land all around your house and putting up some modern art would create a slew of trouble for you, not? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 05:34:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA30517 for dvd-discuss-outgoing; Fri, 10 Mar 2000 05:34:58 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA30514 for ; Fri, 10 Mar 2000 05:34:55 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id NAA05998 for ; Fri, 10 Mar 2000 13:48:01 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 13:48:01 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Steve Stearns wrote: >If I recall correctly, the provisions for anti-cirumvention systems under >WIPO are much more reasonable than those under the DMCA. We must not forget the influence of both the US government and, indirectly, MPAA, on WIPO itself. It would not exist were it not for the companies. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 06:00:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA31741 for dvd-discuss-outgoing; Fri, 10 Mar 2000 06:00:51 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA31738 for ; Fri, 10 Mar 2000 06:00:45 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id OAA10663 for ; Fri, 10 Mar 2000 14:13:50 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 14:13:49 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE In-Reply-To: <20000309115252.A4847@localhost> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Paul Fenimore wrote: >If an author could forbid the _importation_ of expressive material into >the United States, this would lead to a direct conflict with >Meyer v. Nebraska --- the right to learn a foreign language in a >private school. My understanding of this decision is that statutory >protection of region codes on material _imported_ into the United States >would be unconstitutional if one can show that it restricts the right >to learn a foreign language. I think this is a plausible avenue of >attack. Especially since I think many of the DVD's originally published in the US have widely differing extra material (commentary, auxiliary sound tracks, localised menus etc.) in the European versions. Which would naturally mean that reimported, coded-for-Europe DVD's would not play and would cross the right-to-learn argument. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 08:09:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA07955 for dvd-discuss-outgoing; Fri, 10 Mar 2000 08:09:17 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA07952 for ; Fri, 10 Mar 2000 08:09:15 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id QAA29973 for ; Fri, 10 Mar 2000 16:22:22 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 16:22:22 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] region locking argument In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Jeanne A. E. DeVoto wrote: >(The alert reader might also note that DVD-CCA could use the leverage >provided to require other features - in fact already does, I believe. My >suspicion is that at some point in the future, one of the required features >will be refusal to play non-CSS-encoded DVDs, thus making CSS into an >"artist control" measure.) One stated aim is to force any digital output to be done through an interface with similar cryptographic controls preset plus machinery to prevent recording. Combined with Macrovision et al, this makes for some pretty repressive machinery. OTOH, the artist control viewpoint nicely lines up DMCA with the early history of copyright law: early copyright was more a protection to the publisher of a work instead of the author. We seem to be going in that direction once more... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 08:21:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA08171 for dvd-discuss-outgoing; Fri, 10 Mar 2000 08:21:48 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA08168 for ; Fri, 10 Mar 2000 08:21:47 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id QAA01421 for ; Fri, 10 Mar 2000 16:34:54 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 16:34:54 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <38C83648.CBBA69DA@sympatico.ca> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 9 Mar 2000, Ian Hay wrote: >> 9. Plaintiffs are misusing their copyright. The DMCA cannot be used to >> extend the copyright of copyright holder beyond its scope to affect >> marketing power in another area. Plaintiffs are attempting to extend >> power over exhibition software, which is a different area than that >> protected by their copyrights. [Snip] > >This is a new argument which hasn't been flushed out in the mailing >list, but I think it's promising. It is also something quite closely tied to the EFF lawyers' (seemingly quite cunning) argument that DVD CCA is the party which should be suing in the first place, or that at least DVD CCA should be joined in. I think the above double quoted snipped serves as a convincing reason if we claim that MPAA members cannot sue under 1201 in the first place. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 08:28:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA08747 for dvd-discuss-outgoing; Fri, 10 Mar 2000 08:28:46 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA08744 for ; Fri, 10 Mar 2000 08:28:45 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id QAA02290 for ; Fri, 10 Mar 2000 16:41:52 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 10 Mar 2000 16:41:51 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: <8a9jru$gr3$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 9 Mar 2000, David A. Wagner wrote: >> Comes to my mind, do we have any examples of reverse engineering of >> *cryptography* based access controls which have facilitated the advancement >> of technology and/or public good? > >Sure. See my declaration to the California court for a few. >(Netscape web browser, cellphones all over the world, etc.) The problem is, these are primarily examples from the world of software. We can get past with the RE exception. I'd be interested in examples where it has been necessary to do something which is now easily shown to be circumvention in the sense of 1201. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 08:47:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10462 for dvd-discuss-outgoing; Fri, 10 Mar 2000 08:47:29 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA10459 for ; Fri, 10 Mar 2000 08:47:28 -0500 Received: from bugbug (max01-42.suba.com [206.69.121.234]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id JAA02908 for ; Fri, 10 Mar 2000 09:00:34 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Self Introduction Date: Fri, 10 Mar 2000 08:59:38 -0600 Message-ID: <000001bf8aa1$42413280$ea7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000310012601.A9783@thud.reric.net> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The documents don't duplicate the format of the eon archive. And I'm not saying it's superior, either. What I did is save whole strings of posts into single txt documents. It is more work, but you are able to open up an entire string at a time and not one post at a time. you can also download an entire string to your computre instead of one post at a time, which is the REAL plus. It's mentally more hygienic. And in fact the work is not that bad, since it's just a save and an upload. "Save and an upload" that sounds like an ad campaign. > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Eric Seppanen > Sent: Friday, March 10, 2000 1:26 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Self Introduction > > > Why do you feel this is superior to the threaded archives at > > http://eon.law.harvard.edu/archive/dvd-discuss/threads.html > > ? > > They're automatically maintained, so there's zero work involved and no > chance for human error. They track every thread. If you want to single > out important points, maybe it would make sense to simply link back to the > original messages on eon.law.harvard.edu... I fear you're wasting your > time here. > > On Thu, Mar 09, 2000 at 10:08:08PM -0600, sparky wrote: > > Karsten, if you want an easier catch up than reading posts one > at a time, go > > to http://www.zenadmen.com/anti1201. This is my website and > strings of posts > > are stored there as single documents. IT is not totally up to > date but I am > > hoping to rectify that this weekend. > > > > sparky > > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 09:29:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12871 for dvd-discuss-outgoing; Fri, 10 Mar 2000 09:29:26 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA12868 for ; Fri, 10 Mar 2000 09:29:25 -0500 Received: (qmail 16497 invoked by uid 500); 11 Mar 2000 09:18:49 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 09:18:49 -0000 Date: Sat, 11 Mar 2000 01:18:49 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 2000, Sampo A Syreeni wrote: > On Fri, 10 Mar 2000, Kent Nguyen wrote: > > >1) The (Xing?) key was a deliberate stolen "trade secret" which enables > >the creation of DeCSS. > > This point has been hashed on-list at least a dozen times. Tha case brought > by MPAA *members* has little to do with the one originating from DVD > CCA. The latter is the one which concerns itself with trade secrets, the > first is not. The latter is also thought of as being much weaker than the > first, which is what this list primarily spends its time on. If you say the latter. I don't see any trouble the judge recognizing our ability to watch a DVD movie. If we can prove in court how to exactly duplicate DVD without the use of DeCSS it invalidates the pirvacy claim that MPAA made. > > >The above points are the most powerful arguments the plantiff will use to > >defend its technology. With a patent given to CSS on December 1999 > >(correct me if I'm wrong), they will use this as a way of argument in > >addition to the above. > > The patent may have prior art trouble. And remember, trade secrets and > patents are largely orthogonal - you have one or the other but not both. The analogy here is RSA patent. RSA has been reaping the royality benefit ever since the patent was issued. US patent laws, I believe, prohibits the patent of algorithm. If what you are saying, CSS is a prior art or is an algorithm that proves in court not patentable, it invalidates the claim of licensed key. Which makes our case stronger. This mean CSS is a "public domain" property and DeCSS can be freely distributed. > > BTW: please quote frugally. > > Sampo Syreeni , aka decoy, student/math/Helsinki university > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 09:40:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA13058 for dvd-discuss-outgoing; Fri, 10 Mar 2000 09:40:41 -0500 Received: from rz03.FH-Karlsruhe.DE (rz03.RZ-FDDI.FH-Karlsruhe.DE [193.196.125.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA13054 for ; Fri, 10 Mar 2000 09:40:39 -0500 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12TRjY-000Mdc-00 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 16:53:48 +0100 Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) To: dvd-discuss@eon.law.harvard.edu Date: Fri, 10 Mar 100 16:53:46 +0100 (CET) In-Reply-To: from "Kent Nguyen" at Mar 11, 0 01:18:49 am From: Sham Gardner X-Mailer: ELM [version 2.4 PL25] MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If we can prove in court how to exactly > duplicate DVD without the use of DeCSS it invalidates the pirvacy claim > that MPAA made. The MPAA is not claiming piracy in court, but circumvention of access control. "Piracy" is the word they use when talking to the media. Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 11:21:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA32297 for dvd-discuss-outgoing; Fri, 10 Mar 2000 11:21:41 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA32257 for ; Fri, 10 Mar 2000 11:21:40 -0500 Received: (qmail 17366 invoked by uid 500); 11 Mar 2000 11:11:06 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 11:11:06 -0000 Date: Sat, 11 Mar 2000 03:11:06 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 100, Sham Gardner wrote: > > If we can prove in court how to exactly > > duplicate DVD without the use of DeCSS it invalidates the pirvacy claim > > that MPAA made. > > The MPAA is not claiming piracy in court, but circumvention of access > control. "Piracy" is the word they use when talking to the media. Under the fair use clause we have every right to watch DVD movie we purchase. Circumvention of access control is protected by the DMCA. However, by selling the DVD movie to the people, the MPAA allows the circumvention of access control to view the DVD movie. Without circumvention of access control, there by definition, any people who purchase the DVD movie will not be able to view it. If the MPAA wants to be in business they better allow the people to "circumvention of access control" of the DVD movie they purchase. > > Sham > > What I see from the case is the DMCA to be shot down by the court to be illegal. DMCA is against human rights. Security through obscurity is caused for great concern. Check out: www.newyen.com/list.html The crackers know what we don't. Be AFRAID, be REALLY AFRAID. Kent From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 11:34:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04858 for dvd-discuss-outgoing; Fri, 10 Mar 2000 11:34:52 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04855 for ; Fri, 10 Mar 2000 11:34:51 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id KAA14745 for ; Fri, 10 Mar 2000 10:50:41 -0600 Date: Fri, 10 Mar 2000 10:50:41 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Circumvention of access control is protected by the DMCA. However, by > selling the DVD movie to the people, the MPAA allows the circumvention of > access control to view the DVD movie. > > Without circumvention of access control, there by definition, any people > who purchase the DVD movie will not be able to view it. If the MPAA wants > to be in business they better allow the people to "circumvention of access > control" of the DVD movie they purchase. Access controls do not have to be circumvented to view the DVD. CSS controls access to the content of the DVD, limiting its viewing to those who posess licensed CSS decoders. There is no cirumvention involved there. The only time circumvention happens is when somebody tries to view the DVD without using a licensed CSS decoder (i.e. DeCSS). ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 14:36:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32703 for dvd-discuss-outgoing; Fri, 10 Mar 2000 14:36:53 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA32700 for ; Fri, 10 Mar 2000 14:36:51 -0500 Received: (qmail 18968 invoked by uid 500); 11 Mar 2000 14:26:17 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 14:26:17 -0000 Date: Sat, 11 Mar 2000 06:26:16 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 2000, Steve Stearns wrote: > > Circumvention of access control is protected by the DMCA. However, by > > selling the DVD movie to the people, the MPAA allows the circumvention of > > access control to view the DVD movie. > > > > Without circumvention of access control, there by definition, any people > > who purchase the DVD movie will not be able to view it. If the MPAA wants > > to be in business they better allow the people to "circumvention of access > > control" of the DVD movie they purchase. > > Access controls do not have to be circumvented to view the DVD. CSS > controls access to the content of the DVD, limiting its viewing to those > who posess licensed CSS decoders. There is no cirumvention involved > there. The only time circumvention happens is when somebody tries to view > the DVD without using a licensed CSS decoder (i.e. DeCSS). My suspicion was right. The MPAA and DVD-CCA planted the seed (DMCA) before they decide to file this lawsuit. This game is better by the minute. :) > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 14:51:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02302 for dvd-discuss-outgoing; Fri, 10 Mar 2000 14:51:01 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02299 for ; Fri, 10 Mar 2000 14:51:01 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 2ECF87709; Fri, 10 Mar 2000 15:04:39 -0600 (CST) Date: Fri, 10 Mar 2000 15:04:39 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) Message-ID: <20000310150439.B4548@arh1176.urh.uiuc.edu> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: ; from sterno@gemini.bigbrother.net on Fri, Mar 10, 2000 at 10:50:41AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 10, 2000 at 10:50:41AM -0600, Steve Stearns wrote: > > Circumvention of access control is protected by the DMCA. However, by > > selling the DVD movie to the people, the MPAA allows the circumvention of > > access control to view the DVD movie. > > > > Without circumvention of access control, there by definition, any people > > who purchase the DVD movie will not be able to view it. If the MPAA wants > > to be in business they better allow the people to "circumvention of access > > control" of the DVD movie they purchase. > > Access controls do not have to be circumvented to view the DVD. CSS > controls access to the content of the DVD, limiting its viewing to those > who posess licensed CSS decoders. There is no cirumvention involved > there. The only time circumvention happens is when somebody tries to view > the DVD without using a licensed CSS decoder (i.e. DeCSS). > > ---Steve I don't know that we can't attack this. How does one know that a specific DVD player has been authorized to decode a specific disk? If the MPAA argues as you say, we should make them proove that they (the studios) own the copyright on every CSS encoded DVD, and that they directly authorize every DVD player and let the purchasers know they are granting that authority. "Authority" is very broadly refered to in 1201. We need to make that work for us. -- Steven Barker scbarker@uiuc.edu Drilling for oil is boring. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 15:10:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03741 for dvd-discuss-outgoing; Fri, 10 Mar 2000 15:10:55 -0500 Received: from hotmail.com (law2-f133.hotmail.com [216.32.181.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA03738 for ; Fri, 10 Mar 2000 15:10:51 -0500 Received: (qmail 62204 invoked by uid 0); 10 Mar 2000 21:23:26 -0000 Message-ID: <20000310212326.62203.qmail@hotmail.com> Received: from 205.147.249.47 by www.hotmail.com with HTTP; Fri, 10 Mar 2000 13:23:26 PST X-Originating-IP: [205.147.249.47] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Fri, 10 Mar 2000 16:23:26 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >What is the definite distinction between "access" and "performance"? > >I don't think a clear distinction exists. What REALLY matters is whether Congress and the courts think a clear distinction exists: To ''perform'' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 U.S.C. § 101 (1994 and 1999 Supp.). (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. 17 U.S.C. § 1201(a)(2)(B) (1994 and 1999 Supp.). 1. Under principles of statutory contruction, where the legislature uses two different words we assume they intended two different meanings. Therefore, I assume access means something different than performance or Congress would have just used access in both cases or performance in both cases. 2. Assuming a fair use defense applies, the point I made was that Chapter 1200 does not, in any way, destroy fair use. One may argue Chapter 1200 allows only those fair uses which do not cicumvent access control. 3. Let me see if I understand your argument/point: a. § 106(4) only gives the copyright owner the exclusive right to "public" performance. b. "Private" performance is not an exclusive right. c. Private performance is always a fair use. d. Accordingly, anything that restricts private performance restricts fair use. e. A restriction on fair use is not allowed. This argument is logical. However, fair use has no application here. Sec. 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Look at the language. A. The Title: Sec. 107. Limitations on exclusive rights: Fair use B. This indicates that fair use limits only exclusive rights. C. Fair use takes something that is infringement, that is, an unauthorized exercise of an exclusive right, and makes it not infringement. D. Your argument is that private performance is not an exclusive right. E. If private performance is not an exclusive right, you never get to fair use because you never get to infringement. No one will argue that 1201 prevents us from doing something we could previously do. However, what it prevents us from doing is not "fair use." ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 15:35:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05650 for dvd-discuss-outgoing; Fri, 10 Mar 2000 15:35:50 -0500 Received: from inconnu.isu.edu (root@inconnu.isu.edu [134.50.8.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05638 for ; Fri, 10 Mar 2000 15:35:49 -0500 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id OAA21743 for ; Fri, 10 Mar 2000 14:48:57 -0700 Date: Fri, 10 Mar 2000 14:48:57 -0700 (MST) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bletchley park, in WWII, RE'd Enigma. This was arguably the invention of the electronic computer: colossus and "the bombs"--one built by Turing, one built by somebody from the Royal Post office (whose name escapes me). Had it not been for Reverse Engineering, the programmable electronic computer arguably would not've been invented. The capture of an enigma machine was too late in the war to make a difference: Turing and Blechley park already were reading the Enigma code in RT (Real time) by then. On "our side" of the pond, the REing of Enigma was done in parallel by the predecessor of the NSA. The only problem with this is there was no copyright issue involved: hostile states have no recognized copyrights. On Wed, 8 Mar 2000, Sampo A Syreeni wrote: > On Tue, 7 Mar 2000, Robert S. Thau wrote: > > >The Nintendo case is *much* more apropos on this point (it involved a > >genuine access control mechanism), which is why I really regret not > >having being able to cite an on-line copy of the opinion. > > Comes to my mind, do we have any examples of reverse engineering of > *cryptography* based access controls which have facilitated the advancement > of technology and/or public good? These might be even more to the point. > > Some far fetched ideas in the context of PC's (I have little knowledge of > console wars and such): > - I think that objectionable content does not invalidate copyright. Some > viruses (even) contain copyright notices and are encrypted - research would > necessarily call for removing the encryption. Does this count as access > control under 1201? Could it be used to show 1201 to be overbroad? Perhaps > by first stretching the point a bit with 'harmless' viruses which simply > display/play some audiovisual stuff. > - How about the blocked site lists of censorware? These are probably under > copyright, at least if human created and if they contain rules in addition > to just site addresses. They are commonly encrypted to control access by the > general public. Breaking the code has more than once revealed dubious > practices on behalf of the manufacturer (blocking of sites critical towards > the product etc.) and so contributed to common good. > > Neither example really qualifies as cryptographic research, since the > encryption methods are usually trivial and we do not 'identify and analyze > flaws and vulnerabilities of encryption technologies applied to copyrighted > works' as section 1201 requires. In the first case, the aim is not > 'interoperation' in the usual sense of the word, either, so the RE exception > should not apply. In the latter case the encrypted stuff is data, not > program code. > > Sampo Syreeni , aka decoy, student/math/Helsinki university > There is an old saying that if a million monkeys typed on a million keyboards for a million years, eventually all the works of Shakespeare would be produced. Now, thanks to Usenet, we know this is not true. Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 16:04:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11046 for dvd-discuss-outgoing; Fri, 10 Mar 2000 16:04:23 -0500 Received: from hotmail.com (law2-f293.hotmail.com [216.32.180.147]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA11043 for ; Fri, 10 Mar 2000 16:04:21 -0500 Received: (qmail 18356 invoked by uid 0); 10 Mar 2000 22:16:59 -0000 Message-ID: <20000310221659.18355.qmail@hotmail.com> Received: from 205.147.249.47 by www.hotmail.com with HTTP; Fri, 10 Mar 2000 14:16:59 PST X-Originating-IP: [205.147.249.47] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Fri, 10 Mar 2000 17:16:59 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Mr. Ian Hay wrote: >Here are some non-dead-end ideas: > >(1) This circumventing device does not fit into 1201(a)(2) because >it is >primarily used for "authorized" circumvention as required by >the Act. If >DeCSS is used to view a legally purchased DVD, the >purchase price is >consideration for the "authorization". See my post >of Saturday March 4 >with the subject "Authorization: Another way of >seeing it" for a more >elaborate explanation. I personally think >this is the best of the bunch, >despite the absense of substantial comment. This is dead. Here are the reasons: 1. Nowhere does the DMCA state anything about "authorized circumvention." 2. Note the "OR" between § 1201(a)(2)(B) and (C). This indicates that one is liable under § 1201(a)(2) if one does any of (A), (B), or (C). 3. Even assuming DeCSS is "primarily used . . . to view a legally purchased DVD," this only allows DeCSS's creators/distributors to avoid liability under 17 U.S.C. § 1201(a)(2)(A). 4. It does not allow DeCSS's creators/distributors to avoid liability under 17 U.S.C. § 1201(a)(2)(B) or (a)(2)(C). 5. 17 U.S.C. § 1201(a)(2)(B) provides that "[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - . . . (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title. Nothing in this section requires "primarily." Although one could argue that DeCSS has a "commercially significant purpose" -- that is playing DVDs -- that purpose is not "other than to circumvent" because everytime one plays a DVD one circumvents the access control. 4. 17 U.S.C. § 1201(a)(2)(C) is worse. This section provides that "[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - . . . (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. The only limiting language in this section is not on the use of the technology but on the way it is distributed: it must be "marketed". One is liable under this section if the technology may be used in any way to circumvent. As I stated above, all uses of DeCSS circumvent. This is what J. Kaplan meant when he said: THE COURT: Is there any doubt at all that DeCSS is a device that circumvents CSS? MS. GROSS: It does descramble it. THE COURT: Okay. MS. GROSS: But that— THE COURT: With that established, let’s proceed. 6. Therefore, under the statute, the only way to circumvent access control without violating the act is to do so " [with] the authority of the copyright owner;" as specified under § 1201(a)(3)(A). 7. My final note. Mr. Hay stated >You haven't been paying attention. I do understand - it is >cumbersome to >walk into a discussion that has been going on for >weeks in the midpoint, >and actually go through the archives to catch >yourself up. I may not have been in the discussion quite as long as others. I may not have read every post. However, I was paying attention when I wrote my law review article on a precursor to the DMCA. I was paying attention when I read the DMCA. I actually went to class the day we learned statutory construction. So please, have some sympathy and some taste. Joshua A. Daub, Esq. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 16:21:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13796 for dvd-discuss-outgoing; Fri, 10 Mar 2000 16:21:22 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA13793 for ; Fri, 10 Mar 2000 16:21:21 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 10 Mar 2000 14:34:44 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B198E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] ACCESS as USE Date: Fri, 10 Mar 2000 14:34:38 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I would say this differently. Obviously the copyright holder's rights do -not- end with the sale. You can not, for example, publicly display their work w/o specific license. You can not copy it 10 times and sell the copies. If you state that the copyright holder's rights end there you may stop people from listening to the rest of your argument because that is so obviously wrong. How I would say it is that, by purchasing a DVD you are implicitly purchasing the right to view it privately. The issue then becomes whether the copyright holder has the ability to determine the means by which you may view it, and I think that the answer to that would have to be "no". -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: sparky [mailto:sparky@suba.com] > Sent: Thursday, March 09, 2000 4:52 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] ACCESS as USE > > > > The way I would say it is: because the DVDs in > question store > copyrighted works fixed on the DVD, then WHEN THEY ARE SOLD > the copyright > holder's exclusive right ends, and fair use rules now apply > (= your first > sale statement). From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 17:34:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA20512 for dvd-discuss-outgoing; Fri, 10 Mar 2000 17:34:17 -0500 Received: from dial94.cybermesa.com (dial94.cybermesa.com [209.12.75.94]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA20509 for ; Fri, 10 Mar 2000 17:34:13 -0500 Received: (from paul@localhost) by dial94.cybermesa.com (8.8.7/8.8.7) id QAA02286 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 16:50:28 -0700 Date: Fri, 10 Mar 2000 16:50:27 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000310165026.A2185@localhost> References: <20000310212326.62203.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000310212326.62203.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 10, 2000 at 04:23:26PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 10, 2000 at 04:23:26PM -0500, Joshua Daub wrote: > E. If private performance is not an exclusive right, you never get to fair > use because you never get to infringement. Beautiful. Thanks for this very constructive post. I concede the point. You are correct. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 18:44:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24161 for dvd-discuss-outgoing; Fri, 10 Mar 2000 18:44:59 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24157 for ; Fri, 10 Mar 2000 18:44:58 -0500 Received: from travel-net.com (trj90.travel-net.com [207.176.160.90]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id TAA24781 for ; Fri, 10 Mar 2000 19:58:32 -0500 Message-ID: <38C999F7.1E0B1B94@travel-net.com> Date: Fri, 10 Mar 2000 19:57:27 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.72 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE References: <5A8391CA2D9ED311AFAA080009D982B10B198E@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > I would say this differently. Obviously the copyright > holder's rights do -not- end with the sale. You can > not, for example, publicly display their work w/o > specific license. You can not copy it 10 times and > sell the copies. If you state that the copyright > holder's rights end there you may stop people from > listening to the rest of your argument because that > is so obviously wrong. > > How I would say it is that, by purchasing a DVD you > are implicitly purchasing the right to view it privately. > The issue then becomes whether the copyright holder has > the ability to determine the means by which you may view it, > and I think that the answer to that would have to be "no". Thinking is all fine and good but how about some justification for that thought. I happen to agree with you, but I have no idea how to make that argument in court. Under traditional copyright law it would be textbook stuff, but the first thing opposing counsel would say is "but this ain't traditional copyright anymore' and since that itself might be an issue on the table, they would have the right to at least allege it (remember all the talk about paracopyright?). So nothing is cast in stone or nailed down and the job here is (as I see it) to work on arguments to nail this stuff down. And one trailing thought. In the above para. Richard talks about "implicitly purchasing the right to view it privately". I dont have a DVD in front of me. Isnt there some sort of shrinkwrap or clickwrap that makes things a little more nailed down than 'implicitly'? Excuse my ignorance. > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > > Sent: Thursday, March 09, 2000 4:52 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] ACCESS as USE > > > > > > > > The way I would say it is: because the DVDs in > > question store > > copyrighted works fixed on the DVD, then WHEN THEY ARE SOLD > > the copyright > > holder's exclusive right ends, and fair use rules now apply > > (= your first > > sale statement). -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 19:28:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25993 for dvd-discuss-outgoing; Fri, 10 Mar 2000 19:28:39 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA25990 for ; Fri, 10 Mar 2000 19:28:38 -0500 Received: from bugbug (max01-42.suba.com [206.69.121.234]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA26912 for ; Fri, 10 Mar 2000 19:41:45 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Fri, 10 Mar 2000 19:40:53 -0600 Message-ID: <000001bf8afa$d68a2ce0$ea7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B198E@mail2.onetouch.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman said: > > I would say this differently. Obviously the copyright > holder's rights do -not- end with the sale. You can > not, for example, publicly display their work w/o > specific license. You can not copy it 10 times and > sell the copies. If you state that the copyright > holder's rights end there you may stop people from > listening to the rest of your argument because that > is so obviously wrong. I did not say that the copyright holder's rights end. I said the copyright > > holder's exclusive right ends ^^^^^^^^^ by which I mean, fair use now applies; the copyright holder's rights are monopolistic in nature before the sale, after the sale they are limited (though still very monopolistic). > > How I would say it is that, by purchasing a DVD you > are implicitly purchasing the right to view it privately. > The issue then becomes whether the copyright holder has > the ability to determine the means by which you may view it, > and I think that the answer to that would have to be "no". You may argue that the right to view the contents of your DVD is implicitly given when you buy it; and you may even find law citations to back you up (and if you do please post them). BUT the problem with 1201 is that this right comes up hard against the law which is a law against circumventing access control. I think it is extremely unlikely that you will find a precedent stating that by buying a work fixed on a medium protected by access control that by that sale you are given the right to circumvent the access control, and the MPAA lawyers are going to make this distinction if we say "there's an implicit right to view". Therefore it is a far better approach IMHO to find a way to show that CSS restricts non-infringing use shown to be protected under copyright law - which may indeed involve "access" though I've gotten the impression that "access" hasn't received much attention in past rulings of the kind we need from the courts - ; then we argue that DeCSS can be used for non-infringing uses covered under fair use, and basically in that way draw DeCSS under the fair use umbrella. sparkane > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! > > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > > Sent: Thursday, March 09, 2000 4:52 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] ACCESS as USE > > > > > > > > The way I would say it is: because the DVDs in > > question store > > copyrighted works fixed on the DVD, then WHEN THEY ARE SOLD > > the copyright > > holder's exclusive right ends, and fair use rules now apply > > (= your first > > sale statement). > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 19:34:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA26699 for dvd-discuss-outgoing; Fri, 10 Mar 2000 19:34:17 -0500 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA26695 for ; Fri, 10 Mar 2000 19:34:16 -0500 Received: from [38.32.11.117] (helo=ip117.bedford3.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12Tb01-0007ba-00; Fri, 10 Mar 2000 20:47:26 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Date: Sat, 11 Mar 2000 01:46:08 GMT Message-ID: <38c9a296.10063330@mail.tiac.net> References: <5A8391CA2D9ED311AFAA080009D982B10B198E@mail2.onetouch.com> <38C999F7.1E0B1B94@travel-net.com> In-Reply-To: <38C999F7.1E0B1B94@travel-net.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id TAA26696 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 2000 19:57:27 -0500, Dan Steinberg wrote: >And one trailing thought. In the above para. Richard talks about >"implicitly purchasing the right to view it privately". I dont have a >DVD in front of me. Isnt there some sort of shrinkwrap or clickwrap >that makes things a little more nailed down than 'implicitly'? Excuse >my ignorance. The one I'm looking at says (on the box): "The program contained in this LaserDisc is authorized for private home use only. All other rights are retained by the copyright proprietor. The FBI investigates allegations of copyright infringement, and federal law provides severe criminal and civil penalties for those found to be in violation. Made in U.S.A." It looks like this disc was originally released as a Laser Disc, then, later, in DVD. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 19:56:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28178 for dvd-discuss-outgoing; Fri, 10 Mar 2000 19:56:43 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA28175 for ; Fri, 10 Mar 2000 19:56:42 -0500 Received: (qmail 21706 invoked by uid 500); 11 Mar 2000 19:46:11 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 19:46:11 -0000 Date: Sat, 11 Mar 2000 11:46:10 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <20000310221659.18355.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id TAA28176 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 2000, Joshua Daub wrote: > This is what J. Kaplan meant when he said: > > THE COURT: Is there any doubt at all that DeCSS is a device that circumvents > CSS? > > MS. GROSS: It does descramble it. > > THE COURT: Okay. > > MS. GROSS: But that— > > THE COURT: With that established, let’s proceed. > > 6. Therefore, under the statute, the only way to circumvent access control > without violating the act is to do so " [with] the authority of the > copyright owner;" as specified under § 1201(a)(3)(A). Kaplan made a couple of assumption: 1) CSS is the creation of DVD-CCA 2) DeCSS circumvents. (note the language "descramble" vs "circumvents") descramble - takes an encrypted material and decrypted. circumvents - go around the encrypted material. Kaplan is ignorant in this case. He is not qualify to make assumptions on technical qualities. He should ask for an expert to help him clarify the difference between descramble and circumvent. I'm just arguing for arguing sake. Beside DMCA is downright unconstitutional. Kent From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 20:24:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29946 for dvd-discuss-outgoing; Fri, 10 Mar 2000 20:24:47 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA29943 for ; Fri, 10 Mar 2000 20:24:46 -0500 Received: from 208-58-199-72.s326.tnt11.lnhva.md.dialup.rcn.com ([208.58.199.72]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12TbmD-0003BU-00 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 21:37:14 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <38c9a296.10063330@mail.tiac.net> References: <5A8391CA2D9ED311AFAA080009D982B10B198E@mail2.onetouch.com> <38C999F7.1E0B1B94@travel-net.com> <38c9a296.10063330@mail.tiac.net> Date: Fri, 10 Mar 2000 21:37:00 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] ACCESS as USE Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >On Fri, 10 Mar 2000 19:57:27 -0500, Dan Steinberg wrote: > > >And one trailing thought. In the above para. Richard talks about > >"implicitly purchasing the right to view it privately". I dont have a > >DVD in front of me. Isnt there some sort of shrinkwrap or clickwrap > >that makes things a little more nailed down than 'implicitly'? Excuse > >my ignorance. > >The one I'm looking at says (on the box): > >"The program contained in this LaserDisc is authorized for private >home use only. >All other rights are retained by the copyright proprietor. The FBI >investigates >allegations of copyright infringement, and federal law provides >severe criminal >and civil penalties for those found to be in violation. Made in U.S.A." > >It looks like this disc was originally released as a Laser Disc, >then, later, in DVD. From "The Matrix" Warning: For sale or rental for private home use in the US or Canada only, Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted motion pictures, video tapes or video discs. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 20:49:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA30089 for dvd-discuss-outgoing; Fri, 10 Mar 2000 20:49:15 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA30086 for ; Fri, 10 Mar 2000 20:49:14 -0500 Received: from bugbug (max01-08.suba.com [206.69.121.200]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA28769 for ; Fri, 10 Mar 2000 21:02:21 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Fri, 10 Mar 2000 21:01:28 -0600 Message-ID: <000301bf8b06$18406040$c87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent said: . > > Kaplan made a couple of assumption: > 1) CSS is the creation of DVD-CCA > 2) DeCSS circumvents. (note the language "descramble" vs "circumvents") > descramble - takes an encrypted material and decrypted. > circumvents - go around the encrypted material. > > Kaplan is ignorant in this case. He is not qualify to make assumptions on > technical qualities. He should ask for an expert to help him clarify the > difference between descramble and circumvent. This may be an unpleasant surprise, but Judge Kaplan doesn't need to know anything technical to rule on the matter; he only needs to know what DeCSS is in a legal sense, and the outcome of the case will depend on that. If DeCSS were not circumvention - and it IS circumvention, legally speaking - because of technical reasons, the defense would have to point that out in argument. I'm pretty sure this is how it works. To see the full body of 1201, and find out what the law means by circumvention, see: http://www.iag.net/~aleris/dvdfaq.txt sparkane > > I'm just arguing for arguing sake. > > Beside DMCA is downright unconstitutional. > > Kent > > > > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 21:10:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA31430 for dvd-discuss-outgoing; Fri, 10 Mar 2000 21:10:05 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA31427 for ; Fri, 10 Mar 2000 21:10:05 -0500 Received: from 208-58-199-72.s326.tnt11.lnhva.md.dialup.rcn.com ([208.58.199.72]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12TcUM-0007jw-00 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 22:22:50 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Fri, 10 Mar 2000 22:21:08 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >2) DeCSS circumvents. (note the language "descramble" vs "circumvents") >descramble - takes an encrypted material and decrypted. >circumvents - go around the encrypted material. > >Kaplan is ignorant in this case. He is not qualify to make assumptions on >technical qualities. He should ask for an expert to help him clarify the >difference between descramble and circumvent. (3) 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. 17 USC 1201(a)(3) From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 21:56:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01876 for dvd-discuss-outgoing; Fri, 10 Mar 2000 21:56:14 -0500 Received: from front002.cluster1.charter.net (24-216-159-200.hsacorp.net [24.216.159.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA01873 for ; Fri, 10 Mar 2000 21:56:13 -0500 Received: from [24.216.182.84] (HELO ibm.net) by front002.cluster1.charter.net (CommuniGate Pro SMTP 3.2.4) with ESMTP id 3452717 for dvd-discuss@eon.law.harvard.edu; Fri, 10 Mar 2000 23:08:48 -0500 Message-ID: <38C9C743.1F7EAF4F@ibm.net> Date: Fri, 10 Mar 2000 22:10:43 -0600 From: John Lederer X-Mailer: Mozilla 4.7 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This discussion appears to have become a little tangential to the title of the thread, at least. My understanding of the constitutional argument is: 1) the First Amendment prohibits Congress from making a law infringing freedom of speech or the press. 2) The Copyright laws are manifestly such laws. The First Amendment because an Amendment would trump the copyright power , but: 3) the Courts are reluctant to read one of the first 10 amendments as nullifying any part of the original Constiutution because they are basically contemporaneous. Moreover, the porupose of copyright is to rpomote speech by giving authors a monetary incentive to create speech . As well the "fair use" doctrine provides a bit of a safety valve. 4) However, the conflict does imply that the copyright power should be narrowly construed and should not limit speech anymore than is necessary for its purpose. Congress could not, for instance, require licensing of printing presses and proof copies of anything printed on them, even though this might be an effective way of enforcing copyright. 5) DCMA oversteps the boundaries of what is necessary for the copyright power because: a) It is overly broad affecting access to copyrighted materials and non-copyrighted materials b) Despite the Library of Congress provision, it effectively nullifies fair use c) It restricts uses of copyrighted material that would be valid under the copyright law-- e.g. home use of a DVD disk through Linux Is this a reasonable summary of the argument? It seems to me an important one to make, because it creates the conditions for requiring a very narrow interpretation of the DCMA to preserve its consttitutionality. The Regards, John Lederer Oregon , WI From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 21:57:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01927 for dvd-discuss-outgoing; Fri, 10 Mar 2000 21:57:51 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA01924 for ; Fri, 10 Mar 2000 21:57:50 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id XAA14045 for ; Fri, 10 Mar 2000 23:11:00 -0500 (EST) Message-Id: <4.2.2.20000308134706.00b73420@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 10 Mar 2000 23:11:00 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Nimmer, legislative history, access, and use Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id VAA01925 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Nimmer on Copyright is the copyright Bible. Its 1999 supplement addresses the DMCA. My analysis interspersed and at the end. The analogy to physical property and trespass is at the forefront in the legislative history. Nimmer distinguishes between access and usage by saying that "access" is the initial entry to the property, while "use" is whatever the entrant does on the property (presumably including skipping the foyer and reading the books on its shelves out of order). 1 Nimmer on Copyright (1999 Supp.), § 12A.03 Circumvention of access control devices under 1201(a)(1) is "breaking into" a work. H.R. Rep. No. 551, 105th Cong., 2d Sess. Part 1, at 17 (1998) (H. Rep.) ("The act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book"). Nimmer notes that this is not copyright infringement, but "paracopyright." Nimmer at 12A-30. "The invasion inside another's property is itself the offense." Nimmer at 12A-29. See S. Rep. No. 90, 105th Cong., 2d Sess., at 11 (1998) (S. Rep.) (device prohibition "analogous to making it illegal to break into a house using a tool, the primary purpose of which is to break into houses"). The trafficking ban of 1201(a)(2) "targets not those who break into another's domain, but instead those who facilitate the process -- say, those who market siege engines or catapults, come up with ingenious infiltration strategies, and generally facilitate penetration of the stronghold." Nimmer at 12A-30. The "additional violations" of 1201(b)(1) address circumvention for activities already prohibited by existing copyright law. But, "if a guest invited inside the manor contravenes the seigneur's edicts, then the trespass at hand differs qualitatively from breaking and entering. Thus the basic provision [1201(a)(1) still] is inapplicable to 'the subsequent actions of a person once he or she has obtained authorized access to a copy of a work protected under Title 17, even if such actions involve circumvention of additional forms of technological protection measures.'" Nimmer at 12A-31, quoting H.Rep. at 18, S. Rep. at 28. "Once lawfully inside the castle, i.e. vis-a-vis a work that has been lawfully acquired, that individual may circumvent pursuant to lawful conduct, such as to make fair use of the subject work." Nimmer at 12A-33. See H. Rep. at ?, (definitions apply to "protections against unauthorized initial access to a work"). Once inside the house, a guest is limited only by copyright law -- not access controls. --- Nimmer thus suggests that it is legitimate to use copyrighted works in ways the copyright holder may not desire, provided one has a legitimate right to access the work. The owner's right to access control should be limited to locking or unlocking the front gate. Nimmer does not address how this analysis meshes with the bans of 1201(a)(2) and (b)(1) -- that users nay still be technologically prevented from reaching some rooms -- but here's a shot: If copyright holders are shortsighted/greedy enough to try to bar more than the front gate, by preventing fair use copying or moving past the intro advertisements, then they give a commercially significant non-circumvention purpose to DeCSS. While it does circumvent CSS's front gate, its interior work is circumvention of _use_ controls, neither 1201(a)(2)'s "circumventing a technological measure that effectively controls access to a work protected under this title" nor 1201(b)(1)'s "circumvent[ing] protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof." If the owners had stopped at locking or unlocking the front door with a licensed key, selling lockpicks (DeCSS) could be forbidden; once they overreach with the number of locks, they have to live with a tool that can pick the front door lock (play with no licensed key) as well as those inside (copy, skip ads). --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 22:38:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08651 for dvd-discuss-outgoing; Fri, 10 Mar 2000 22:38:59 -0500 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08635 for ; Fri, 10 Mar 2000 22:38:57 -0500 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id UAA10144 for ; Fri, 10 Mar 2000 20:50:30 -0800 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA19000; Fri, 10 Mar 2000 20:14:17 -0800 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Reverse-engineering precedents -- Connectix Date: 10 Mar 2000 20:14:08 -0800 Organization: A poorly-installed InterNetNews site Lines: 12 Distribution: isaac Message-ID: <8ach6g$ihn$1@blowfish.isaac.cs.berkeley.edu> References: <8a9jru$gr3$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article , Sampo A Syreeni wrote: > >(Netscape web browser, cellphones all over the world, etc.) > > The problem is, these are primarily examples from the world of > software. Why is that a problem? I don't see anywhere in 1201 that makes a distinction between software and hardware. In fact, if I had to choose, I'd guess software is more relevant than hardware to the case at hand -- CSS was apparently reverse-engineered from a *software* (not hardware) implementation. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 22:54:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11469 for dvd-discuss-outgoing; Fri, 10 Mar 2000 22:54:18 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA11466 for ; Fri, 10 Mar 2000 22:54:17 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id AAA28348 for ; Sat, 11 Mar 2000 00:07:26 -0500 (EST) Message-Id: <4.2.2.20000310205654.00b9a810@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 11 Mar 2000 00:07:27 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Fair use again (was Censorware reverse-engineering and DMCA) In-Reply-To: <20000310212326.62203.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu To me, this outline of fair use's inapplicability / irrelevance points out an implicit contradiction in the current Title 17. The copyright owner's exclusive rights are enumerated in sec. 106. Access is not among these. The sec. 106 rights are the areas in which the owner's powers are greatest, yet even an exclusive right to reproduce, display, and publicly perform a work does not give the owner the power completely to prevent private viewing or noncommercial copying of segments of a legitimately purchased copy of the work. The infringer who reproduces, creates a derivative, distributes, etc. has a defense if his use is fair under sec. 107. By adding an access control device, however, the owner can cut off the means of private viewing or copying. If no one can distribute the device that would permit these non-infringing uses, it matters little that a fair user might not be prosecuted under 1201(a)(1) -- he can't get in. Where the sec. 106 rights of reproduction, derivative use, distribution, etc. are limited, the new right of "access control" is absolute. Thus, access control threatens to swallow the existing limitations on all of the s106 exclusive rights by enabling an owner to make it so that fair uses would be possible only after the forbidden breaking of an access control, for which the tools are prohibited. As Nimmer puts it "The digital revolution places unprecedented stress on those browsing activities [the public's traditional access to published works]. For it potentially allows copyright owners to control the flow not merely of their unpublished manuscripts, but more importantly of their published works as well. If copyright owners package their 'published' goods in digital envelopes accessible only through passwords, then perhaps they can, indeed, levy a unilateral royalty upon such activities as resales and reviews." Nimmer on Copyright, s. 12A.07[B][1] at 12A-80-81. If new digital technologies, and these controls, supersede traditional publishing, we are left with "the specter of a 'pay-per-use' world." Id. at 12A-82. Fair use is squeezed out, made an irrelevant artifact of old technologies. The dissents of Reps. Klug and Boucher to the Commerce Committee report (the last pages of ) express similar concerns. The contradiction stems from the ban of devices needed to enable fair use. Per Nimmer, "the issue ... emerges organically from Congress' decision, made early in the course of deliberating ... to regulate devices rather than behavior." Fair use is not a defense to distribution of circumvention devices. Its elimination, however, is the basis for an argument that with its anti-circumvention-trafficking provision, section 1201 is overbroad or entirely unconstitutional. At 04:23 PM 3/10/00 -0500, jadaub@hotmail.com wrote: >>What is the definite distinction between "access" and "performance"? >> >>I don't think a clear distinction exists. > >What REALLY matters is whether Congress and the courts think a clear >distinction exists: > >To ''perform'' a work means to recite, render, play, dance, or > act it, either directly or by means of any device or process or, > in the case of a motion picture or other audiovisual work, to > show its images in any sequence or to make the sounds > accompanying it audible. > >17 U.S.C. ' 101 (1994 and 1999 Supp.). > > > (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. > >17 U.S.C. ' 1201(a)(2)(B) (1994 and 1999 Supp.). > >1. Under principles of statutory contruction, where the legislature uses >two different words we assume they intended two different meanings. >Therefore, I assume access means something different than performance or >Congress would have just used access in both cases or performance in both >cases. > >2. Assuming a fair use defense applies, the point I made was that Chapter >1200 does not, in any way, destroy fair use. One may argue Chapter 1200 >allows only those fair uses which do not cicumvent access control. > >3. Let me see if I understand your argument/point: > >a. ' 106(4) only gives the copyright owner the exclusive right to >"public" performance. > >b. "Private" performance is not an exclusive right. > >c. Private performance is always a fair use. > >d. Accordingly, anything that restricts private performance restricts >fair use. > >e. A restriction on fair use is not allowed. > >This argument is logical. However, fair use has no application here. > > Sec. 107. Limitations on exclusive rights: Fair use > > Notwithstanding the provisions of sections 106 and 106A, the fair > use of a copyrighted work, including such use by reproduction in > copies or phonorecords or by any other means specified by that > section, for purposes such as criticism, comment, news reporting, > teaching (including multiple copies for classroom use), > scholarship, or research, is not an infringement of copyright. > >Look at the language. > >A. The Title: Sec. 107. Limitations on exclusive rights: Fair use > >B. This indicates that fair use limits only exclusive rights. > >C. Fair use takes something that is infringement, that is, an >unauthorized exercise of an exclusive right, and makes it not infringement. > >D. Your argument is that private performance is not an exclusive right. > >E. If private performance is not an exclusive right, you never get to >fair use because you never get to infringement. > >No one will argue that 1201 prevents us from doing something we could >previously do. However, what it prevents us from doing is not "fair use." The argument is right on, and that's why 1201 is so dangerous! It eliminates fair use without a whimper. --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 23:16:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14073 for dvd-discuss-outgoing; Fri, 10 Mar 2000 23:16:08 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA14070 for ; Fri, 10 Mar 2000 23:16:07 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id AAA03504; Sat, 11 Mar 2000 00:29:17 -0500 (EST) Message-Id: <4.2.2.20000311002642.00bb4580@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 11 Mar 2000 00:29:18 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (thread reconvergence) Cc: dvd-discuss@eon.law.harvard.edu In-Reply-To: References: <200003091538.KAA06505@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:52 AM 3/9/00 -0600, sterno@gemini.bigbrother.net wrote: >Hmmmm... If this law does not provide an exemption for fair use, then it >has de facto eliminated fair use from copyright law. All any media >producer has to do is develop a minimalist copy protection measure, and >suddenly I can remove all fair use rights for the media. They have given >the right to regulate fair use to the producers of media. > >---Steve My fears as well. I try to make it the entree to a constitutional argument --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 10 23:47:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15404 for dvd-discuss-outgoing; Fri, 10 Mar 2000 23:47:29 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA15401 for ; Fri, 10 Mar 2000 23:47:28 -0500 Received: (qmail 23553 invoked by uid 500); 11 Mar 2000 23:36:55 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 23:36:55 -0000 Date: Sat, 11 Mar 2000 15:36:55 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Constitutional Limits to Copyright Power In-Reply-To: <38C9C743.1F7EAF4F@ibm.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 10 Mar 2000, John Lederer wrote: > This discussion appears to have become a little tangential to the title of the > thread, at least. > > My understanding of the constitutional argument is: > > 1) the First Amendment prohibits Congress from making a law infringing freedom > of speech or the press. > > 2) The Copyright laws are manifestly such laws. The First Amendment because an > Amendment would trump the copyright power , but: > > 3) the Courts are reluctant to read one of the first 10 amendments as > nullifying any part of the original Constiutution because they are basically > contemporaneous. Moreover, the porupose of copyright is to rpomote speech by > giving authors a monetary incentive to create speech . As well the "fair use" > doctrine provides a bit of a safety valve. Right on target. Copyright laws were meant to create speech. It does not try to inhibit speech unlike the DMCA. > > 4) However, the conflict does imply that the copyright power should be narrowly > construed and should not limit speech anymore than is necessary for its > purpose. Congress could not, for instance, require licensing of printing > presses and proof copies of anything printed on them, even though this might be > an effective way of enforcing copyright. > > 5) DCMA oversteps the boundaries of what is necessary for the copyright power > because: > > a) It is overly broad affecting access to copyrighted materials and > non-copyrighted materials > b) Despite the Library of Congress provision, it effectively nullifies fair use > > c) It restricts uses of copyrighted material that would be valid under the > copyright law-- e.g. home use of a DVD disk through Linux > > Is this a reasonable summary of the argument? You bet! Excellent work. > > It seems to me an important one to make, because it creates the conditions for > requiring a very narrow interpretation of the DCMA to preserve its > consttitutionality. We should fight the constitutionality of DMCA. > > The > > > Regards, > John Lederer > Oregon , WI > > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 00:01:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15642 for dvd-discuss-outgoing; Sat, 11 Mar 2000 00:01:23 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA15639 for ; Sat, 11 Mar 2000 00:01:21 -0500 Received: (qmail 23672 invoked by uid 500); 11 Mar 2000 23:50:49 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 11 Mar 2000 23:50:49 -0000 Date: Sat, 11 Mar 2000 15:50:49 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No shit! The DMCA tries to make up their own definition. They are setting up new assumptions. Who wrote the part about "circumvent a technological measure"? I need to talk to that person. On Fri, 10 Mar 2000, Jeremy Erwin wrote: > > > >2) DeCSS circumvents. (note the language "descramble" vs "circumvents") > >descramble - takes an encrypted material and decrypted. > >circumvents - go around the encrypted material. > > > >Kaplan is ignorant in this case. He is not qualify to make assumptions on > >technical qualities. He should ask for an expert to help him clarify the > >difference between descramble and circumvent. > > (3) 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. > > 17 USC 1201(a)(3) > > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 00:38:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18108 for dvd-discuss-outgoing; Sat, 11 Mar 2000 00:38:11 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18105 for ; Sat, 11 Mar 2000 00:38:10 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id BAA28619 for ; Sat, 11 Mar 2000 01:51:20 -0500 (EST) Message-Id: <4.2.2.20000310211328.00bbc990@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 11 Mar 2000 01:51:21 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Delegation Argument Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From the "code is law" front: Section 1201 does not mandate any particular technological protection. "Instead, Section 1201 takes those technological measures that win adoption because of their efficacy and confers protection on them.... That approach causes important consequences. First, the process of determining which measures will win widespread adoption is not yet complete ... To that extent, the statute's reach remains unspecified as of the date of enactment." 1 Nimmer on Copyright, s 12A.03, 12A-15. In other words, Congress left the definition of the law up to the copyright holders. The DMCA lets them code the legal prohibition, then puts the executive enforcement power behind whatever choice they make. The owners may choose to lock only pure expressive content, or they may add uncopyrightable extras behind the fence. They may choose a method that places little burden on those who wish to access their works, or they may require that we agree not to criticize the works we view or subscribe to confidentiality agreements in order to gain access. To my mind, this leaves open a good First Amendment argument: Nothing in this regulatory scheme guarantees that the copyright holders will choose the least restrictive means by which their copyrights may be protected. Further, even if the copyright owners are good guys, Congress is not permitted not give them lawmaking power. Congress, and only Congress, is empowered to legislate under the Copyright Clause. It cannot delegate the completion of its laws to private parties. See Larkin v. Grendel's Den, Inc. 459 U.S. 116 (1982) (overturning state statute giving schools and churches the power to block the issuance of liquor licenses nearby as an improper delegation of governmental function to private entities). Too far afield? --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 00:52:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18556 for dvd-discuss-outgoing; Sat, 11 Mar 2000 00:52:11 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18553 for ; Sat, 11 Mar 2000 00:52:10 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id CAA03285 for ; Sat, 11 Mar 2000 02:05:20 -0500 (EST) Message-Id: <4.2.2.20000311002524.00b81100@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 11 Mar 2000 02:05:21 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA In-Reply-To: <200003091506.KAA06401@oobleck.mit.edu> References: <20000309135945.67395.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another (probably losing) argument would be that the lists are entirely functional, rather than expressive. The better the lists were at meeting their goals, the less copyrightable their content. Forcing the censors into the argument that their lists were in fact non-functional could be interesting. --Wendy At 10:06 AM 3/9/00 -0500, sethf@mit.edu wrote: > > "Joshua Daub" > > They may argue but they are likely to lose. Unless there is more to > > selecting the list than simply choosing from all the possibilities, there > > would be no protection. > > I think the counter-argument will be exactly that there is "more", >that the particular process of choosing what is to be blacklisted has >the minimal elements of creativity and originality to trigger copyright >protection. This is not the "sweat of the brow" argument, as it does >not rely on the *effort*, but on the "originality" which will be >argued to be present in the selection process itself. It certainly >seems to me an argument that won't be dismissed out of hand. > > This actually connects to my prior point about the massive >new weapon which the DMCA gives censorware-makers. The compilation >copyright protection for a blacklist is certainly something that can >be used in a SLAPP-context. But this copyright, however minor, however >weak, if it is present at all, can then be used to leverage the full >effect of the DMCA - for orders of magnitude more threat-power. > >--------------------------------------------------------------------- >Seth Finkelstein Consulting Web Programmer sethf@mit.edu >--------------------------------------------------------------------- >(and co-founder (now retired) Censorware Project http://censorware.org) wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 09:13:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA32662 for dvd-discuss-outgoing; Sat, 11 Mar 2000 09:13:51 -0500 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA32659 for ; Sat, 11 Mar 2000 09:13:50 -0500 Received: from cqlap (sdn-ar-010casfrMP170.dialsprint.net [158.252.241.172]) by snipe.prod.itd.earthlink.net (8.9.3/8.9.3) with SMTP id HAA29865 for ; Sat, 11 Mar 2000 07:27:00 -0800 (PST) From: "Neil" To: Subject: RE: [dvd-discuss] Delegation Argument Date: Sat, 11 Mar 2000 07:24:59 -0800 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 In-Reply-To: <4.2.2.20000310211328.00bbc990@law.harvard.edu> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy, "Nothing in this regulatory scheme guarantees that the copyright holders will choose the least restrictive means by which their copyrights may be protected" Essentially true. A copyright holder, empowered with a variety of varying-protection possibilities to control the limitations of use of their works will most likely choose the most restrictive path, arguing that 'more is better'. This is especially true when said copyright holder is a commercial for-profit entity with extreme interest in the protection of the material: preventing negative public discussion about the material, it's use, or applicability to specific situations; discouraging negative publicity while implicitly providing license to those who wish to praise the strength of the material at hand. This is akin of the kinds of restrictions in most NDAs, and I wonder if a) the public at large is ready to digest, understand, and comply with terms similar to these, and b) the extent of the First Amendment chilling this would generally have. Too far afield? I don't think so. --Neil nahal@earthlink.net -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Wendy Seltzer Sent: Friday, March 10, 2000 10:51 PM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Delegation Argument From the "code is law" front: Section 1201 does not mandate any particular technological protection. "Instead, Section 1201 takes those technological measures that win adoption because of their efficacy and confers protection on them.... That approach causes important consequences. First, the process of determining which measures will win widespread adoption is not yet complete ... To that extent, the statute's reach remains unspecified as of the date of enactment." 1 Nimmer on Copyright, s 12A.03, 12A-15. In other words, Congress left the definition of the law up to the copyright holders. The DMCA lets them code the legal prohibition, then puts the executive enforcement power behind whatever choice they make. The owners may choose to lock only pure expressive content, or they may add uncopyrightable extras behind the fence. They may choose a method that places little burden on those who wish to access their works, or they may require that we agree not to criticize the works we view or subscribe to confidentiality agreements in order to gain access. To my mind, this leaves open a good First Amendment argument: Nothing in this regulatory scheme guarantees that the copyright holders will choose the least restrictive means by which their copyrights may be protected. Further, even if the copyright owners are good guys, Congress is not permitted not give them lawmaking power. Congress, and only Congress, is empowered to legislate under the Copyright Clause. It cannot delegate the completion of its laws to private parties. See Larkin v. Grendel's Den, Inc. 459 U.S. 116 (1982) (overturning state statute giving schools and churches the power to block the issuance of liquor licenses nearby as an improper delegation of governmental function to private entities). Too far afield? --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 09:31:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01223 for dvd-discuss-outgoing; Sat, 11 Mar 2000 09:31:30 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01220 for ; Sat, 11 Mar 2000 09:31:29 -0500 Received: from bugbug (max01-13.suba.com [206.69.121.205]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id JAA10827 for ; Sat, 11 Mar 2000 09:44:37 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Nimmer, legislative history, access, and use Date: Sat, 11 Mar 2000 09:43:44 -0600 Message-ID: <000201bf8b70$94f140e0$cd7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <4.2.2.20000308134706.00b73420@law.harvard.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy said: > But, "if a guest invited inside the manor contravenes the seigneur's > edicts, then the trespass at hand differs qualitatively from breaking and > entering. Thus the basic provision [1201(a)(1) still] is inapplicable to > 'the subsequent actions of a person once he or she has obtained > authorized > access to a copy of a work protected under Title 17, even if such actions > involve circumvention of additional forms of technological protection > measures.'" Nimmer at 12A-31, quoting H.Rep. at 18, S. Rep. at > 28. "Once > lawfully inside the castle, i.e. vis-a-vis a work that has been lawfully > acquired, that individual may circumvent pursuant to lawful conduct, such > as to make fair use of the subject work." Nimmer at 12A-33. > See H. Rep. at ?, (definitions apply to "protections against > unauthorized > initial access to a work"). > Once inside the house, a guest is limited only by copyright law -- not > access controls. This is as they say in England BRILLIANT. This seems very much to say that a powerful point of attack is to show that CSS restricts allowed fair use - and then maybe there would not be a need to show that DeCSS has non-infringing purposes outside of normal fair use of purchased DVDs, although if we could argue that DeCSS has such additional uses that might provide more ammo. No need to worry about "authority". Wow. It also suggests that the access as use concept is completely wrong. Lucky it's no longer necessary! It's interesting that this phrase states what I believe we are trying to argue, namely that access control on purchased media is basically not protected by 1201, which, except in the case of works provided as service, which already has plenty of thou-shalt-not-access law protecting it, would result in 1201 becoming more or less a lame duck, redundant in effect as it is in rule. > > --- > > Nimmer thus suggests that it is legitimate to use copyrighted > works in ways > the copyright holder may not desire, provided one has a > legitimate right to > access the work. The owner's right to access control should be > limited to > locking or unlocking the front gate. Nimmer does not address how this > analysis meshes with the bans of 1201(a)(2) and (b)(1) -- that users nay > still be technologically prevented from reaching some rooms -- > but here's a > shot: > > If copyright holders are shortsighted/greedy enough to try to bar > more than > the front gate, by preventing fair use copying or moving past the intro > advertisements, then they give a commercially significant > non-circumvention > purpose to DeCSS. While it does circumvent CSS's front gate, > its interior > work is circumvention of _use_ controls, neither 1201(a)(2)'s > "circumventing a technological measure that effectively controls > access to > a work protected under this title" nor 1201(b)(1)'s "circumvent[ing] > protection afforded by a technological measure that effectively > protects a > right of a copyright owner under this title in a work or a portion > thereof." If the owners had stopped at locking or unlocking the > front door > with a licensed key, selling lockpicks (DeCSS) could be forbidden; once > they overreach with the number of locks, they have to live with a > tool that > can pick the front door lock (play with no licensed key) as well as those > inside (copy, skip ads). > > --Wendy > wendy@seltzer.com || wseltzer@kramerlevin.com > http://cyber.law.harvard.edu/seltzer.html > > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 09:32:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01316 for dvd-discuss-outgoing; Sat, 11 Mar 2000 09:32:01 -0500 Received: from relay2.zonnet.nl (relay2.zonnet.nl [212.48.41.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01313 for ; Sat, 11 Mar 2000 09:32:00 -0500 Received: from stad.dsl.nl ([212.48.59.146]) by relay2.zonnet.nl (Netscape Messaging Server 4.05) with ESMTP id FR9L3000.PG7; Sat, 11 Mar 2000 16:45:00 +0100 Message-ID: <38CA69EE.5CDBB561@stad.dsl.nl> Date: Sat, 11 Mar 2000 16:44:46 +0100 From: Tom den Duijf X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.13 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu, greslin@linuxpower.org Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA case with their buzzword: PIRACY References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu hello list, I'm very unhappy with rob's state of mind about propoganda. In (m)any conflict/war of this sort you find propoganda is beiing used if you like it or not. So I would like to state: If we can effectively benefit from from a very clear OVERsimplified story, I think we should use it. Their story about piracy stinks, and we have to "proof" that it stinks You can do this by "selling" your own story If we lose this case, it will be (partly) because their propaganda was "selling" better. So to Rob i would say stop wining(?) about propaganda. We do have very Honest case, which is so important, that we (sadly) can not do without a fair amount of effective "propaganda". further... Let's always be prepared for losing this case and prepare for strategies when this happens. so let's also devellop strategies that go beyond these particular lawcases Tom den Duijf Leiden, Holland greslin@linuxpower.org wrote: > > On Thu, Mar 09, 2000 at 12:45:56PM -0800, Kent Nguyen wrote: > > > > > > On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > > > > > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > > > > > Any feedback would be appreciated, but I'm not going to debate the > > > > points in it. The purpose of this essay is to advocate a position, not > > > > to be "fair" to both sides of the debate. If you have evidence that > > > > supports or refutes anything in particular, that would be most helpful. > > > > > > Bryan.. what you're describing in this paragraph is propaganda, not information. > > > How exactly does this help anyone when you say out front that you only > > > intend to tell half of the story? > > > > > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > > > it seems to me that what they're asking for is an intelligence report. You > > > don't write a useful intelligence report - or a scientific paper, or a legal > > > analysis - by advocating positions. You show facts, build logics, and then > > > accept the end results with a degree of honesty and integrity. > > > > > > Anything else is useless flag-waving and ego-thumping. > > > > I agree. To a certain extent all "logic" has a sway, a > > position. Scientific papers have a position. Suddle but it has a > > position. Thus makes it bias. The judge in New York shows great > > bias. It's hard or even impossible to convince a judge once he is being > > bought. > > Excuse me.. but did you have a point in this post? You start by saying > "I agree" to my statement and then follow it up by arguing that it's okay > to be biased because everyone's doing it these days. Then you ramble on > for several paragraphs, not really making any sense. > > Let me ask *this* question - is there anyone, absolutely anyone, reading > this forum who believes that honesty, integrity and a respect for the facts > is less important than winning this case? I'd really like to know, because > if we're going to be a propaganda farm then I signed up with the wrong > camp and would like to be let off at the next stop. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 09:35:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01651 for dvd-discuss-outgoing; Sat, 11 Mar 2000 09:35:32 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01648 for ; Sat, 11 Mar 2000 09:35:31 -0500 Received: from bugbug (max01-13.suba.com [206.69.121.205]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id JAA10899 for ; Sat, 11 Mar 2000 09:48:40 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Nimmer, legislative history, access, and use Date: Sat, 11 Mar 2000 09:47:47 -0600 Message-ID: <000301bf8b71$25b75380$cd7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <4.2.2.20000308134706.00b73420@law.harvard.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy said: > > Nimmer on Copyright is the copyright Bible. Its 1999 supplement > addresses > the DMCA. Where can we get this Nimmer? I want to read him myself. Is it online? sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 10:06:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03323 for dvd-discuss-outgoing; Sat, 11 Mar 2000 10:06:29 -0500 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA03320 for ; Sat, 11 Mar 2000 10:06:27 -0500 Received: from ppp.anonymizer.com (13-036.015.popsite.net [216.126.184.36]) by cyberpass.net (8.8.8/8.7.3) with SMTP id IAA15896 for ; Sat, 11 Mar 2000 08:22:41 -0800 (PST) Message-Id: <4.1.20000311081224.00a27690@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 11 Mar 2000 08:17:42 -0800 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Cyber Patrol 4 (Censorware reverse-engineering) In-Reply-To: <4.2.2.20000311002642.00bb4580@law.harvard.edu> References: <200003091538.KAA06505@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On the subject of censorware reverse engineering and DMCA, some may find this quite interesting. The authors are believed not to reside in the U.S. March 11, 2000 - ANNOUNCEMENT Cyber Patrol(R) 4, a "censorware" product intended to prevent users from accessing undesirable Internet content, has been reverse engineered by youth rights activists Eddy L O Jansson and Matthew Skala. A detailed report of their findings, titled "The Breaking of Cyber Patrol(R) 4", with commentary on the reverse engineering process and cryptographic attacks against the product's authentication system, has been posted on the World Wide Web at this address: http://hem.passagen.se/eddy1/reveng/cp4/cp4break.html The abstract of the report: Several attacks are presented on the "sophisticated anti-hacker security" features of Cyber Patrol(R) 4, a "censorware" product intended to prevent users from accessing Internet content considered harmful. Motivations, tools, and methods are discussed for reverse engineering in general and reverse engineering of censorware in particular. The encryption of the configuration and data files is reversed, as are the password hash functions. File formats are documented, with commentary. Excerpts from the list of blocked sites are presented and commented upon. A package of source code and binaries implementing the attacks is included. Eddy L O Jansson srm_dfr@hotmail.com http://hem.passagen.se/eddy1/index.html Matthew Skala mskala@ansuz.sooke.bc.ca http://www.islandnet.com/~mskala/ -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 10:17:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03655 for dvd-discuss-outgoing; Sat, 11 Mar 2000 10:17:44 -0500 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA03651 for ; Sat, 11 Mar 2000 10:17:42 -0500 Received: from ppp.anonymizer.com (13-036.015.popsite.net [216.126.184.36]) by cyberpass.net (8.8.8/8.7.3) with SMTP id IAA23244 for ; Sat, 11 Mar 2000 08:33:55 -0800 (PST) Message-Id: <4.1.20000311082510.00a2ba10@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 11 Mar 2000 08:28:55 -0800 To: From: "James S. Tyre" Subject: RE: [dvd-discuss] Nimmer, legislative history, access, and use In-Reply-To: <000301bf8b71$25b75380$cd7945ce@bugbug.WinNATDomain> References: <4.2.2.20000308134706.00b73420@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:47 AM 3/11/2000 -0600, sparky wrote: >Wendy said: >> >> Nimmer on Copyright is the copyright Bible. Its 1999 supplement >> addresses >> the DMCA. > >Where can we get this Nimmer? I want to read him myself. Is it online? Nimmer is the most widely used treatise on copyright used by U.S. lawyers, though its quality has slid a bit in recent years. It is definitely not online anywhere for free, though any half-assed public law library in the U.S. would have it. (Forgive me for not knowing if you are in the U.S., I'm a fairly new subscriber to this list.) -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 10:24:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04309 for dvd-discuss-outgoing; Sat, 11 Mar 2000 10:24:49 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA04302 for ; Sat, 11 Mar 2000 10:24:47 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA17546 for ; Sat, 11 Mar 2000 09:40:46 -0600 Date: Sat, 11 Mar 2000 09:40:46 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Nimmer, legislative history, access, and use In-Reply-To: <4.2.2.20000308134706.00b73420@law.harvard.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > But, "if a guest invited inside the manor contravenes the seigneur's > edicts, then the trespass at hand differs qualitatively from breaking and > entering. Thus the basic provision [1201(a)(1) still] is inapplicable to > 'the subsequent actions of a person once he or she has obtained authorized > access to a copy of a work protected under Title 17, even if such actions > involve circumvention of additional forms of technological protection > measures.'" Nimmer at 12A-31, quoting H.Rep. at 18, S. Rep. at 28. "Once So, who owns the DVD that you have purchased? This talk of owning a house and somebody breaking in, implies to me the attitude that the MPAA owns your DVD. But in fact, I went out, purchased the disc, and was never asked to commit to any license agreement for this disc. So, it would seem that in fact, I'm buying something and owning it, but yet some corportion is allowed to tell me how I access it and when. I find an interesting parallel in the realm of automobiles. Don't know how relevant this is, but inside most cars today there is a little computer chip that regulates how fast your car can go. This is to bring the cars into compliance with emissions regulations. Now, you, as the owner of a car can go out and cirumvent the access control on your car's higher speeds. There's no law preventing this, the only relevant law is the one that says your emissions have to be at a certain level. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 10:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04575 for dvd-discuss-outgoing; Sat, 11 Mar 2000 10:29:19 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA04571 for ; Sat, 11 Mar 2000 10:29:18 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA17747 for ; Sat, 11 Mar 2000 09:45:16 -0600 Date: Sat, 11 Mar 2000 09:45:16 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA case with their buzzword: PIRACY In-Reply-To: <38CA69EE.5CDBB561@stad.dsl.nl> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If we can effectively benefit from from a very clear OVERsimplified > story, I think we should use it. > Their story about piracy stinks, and we have to "proof" that it stinks > You can do this by "selling" your own story Here's an approach. Walk into court and bring in an expert witness who has the technical skills to be a pirate. Have him come in and demonstrate all the variety of tools that exist to allow him to copy a DVD without using DeCSS. Then ask him this question: Lawyer: "Why do you need DeCSS to pirate DVD's?" Pirate: "I don't" Lawyer: "Then why would somebody interested in pirating DVD's write DeCSS?" Pirate: "I can't fathom it. I can copy DVD's at will without running afoul of the DMCA, but DeCSS doesn't give any new capabilities and obviously risks prosecution under the DMCA". Or something like that... ---Steve From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 11:44:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA08214 for dvd-discuss-outgoing; Sat, 11 Mar 2000 11:44:47 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA08211 for ; Sat, 11 Mar 2000 11:44:46 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id MAA13750 for ; Sat, 11 Mar 2000 12:57:58 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA27127; Sat, 11 Mar 2000 12:57:56 -0500 (EST) Date: Sat, 11 Mar 2000 12:57:56 -0500 (EST) Message-Id: <200003111757.MAA27127@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Delegation Argument In-Reply-To: References: <4.2.2.20000310211328.00bbc990@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu nahal@earthlink.net writes: > This is especially true when said copyright holder is a commercial > for-profit entity with extreme interest in the protection of the material: > preventing negative public discussion about the material, it's use, or > applicability to specific situations; discouraging negative publicity while > implicitly providing license to those who wish to praise the strength of the > material at hand. This is akin of the kinds of restrictions in most NDAs, > and I wonder if a) the public at large is ready to digest, understand, and > comply with terms similar to these, and b) the extent of the First Amendment > chilling this would generally have. NDAs are a good example, but an even better one might be the clauses in some software license agreements which forbid publication of any benchmarks without the consent of the licensor. For instance, the license on evaluation copies of the Oracle 8i database says: "Customer shall not... disclose results of any benchmark tests of any Program to any third party without Oracle's prior written approval." (I think the licenses on commercial-use copies have similar clauses, but I don't have one handy). I imagine that anyone associated with "Mission to Mars" is wishing right now that they had the same rights to control reviews of their product that Oracle is claiming here... rst From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:03:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA09021 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:03:44 -0500 Received: from mtiwmhc27.worldnet.att.net (mtiwmhc27.worldnet.att.net [204.127.131.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA09018 for ; Sat, 11 Mar 2000 12:03:43 -0500 Received: from alaptop.hotwired.com ([12.78.116.220]) by mtiwmhc27.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000311181651.YVMO24363.mtiwmhc27.worldnet.att.net@alaptop.hotwired.com> for ; Sat, 11 Mar 2000 18:16:51 +0000 Message-Id: <4.3.0.20000311131441.021792f0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Sat, 11 Mar 2000 13:14:59 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] Cyber Patrol 4 (Censorware reverse-engineering) In-Reply-To: <4.1.20000311081224.00a27690@cyberpass.net> References: <4.2.2.20000311002642.00bb4580@law.harvard.edu> <200003091538.KAA06505@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:17 3/11/2000 -0800, James S. Tyre wrote: >On the subject of censorware reverse engineering and DMCA, some may find >this quite interesting. The authors are believed not to reside in the U.S. It is quite nice. My take on it: http://www.politechbot.com/cgi-bin/politech.cgi?name=censorware -Declan From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:08:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10465 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:08:40 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10462 for ; Sat, 11 Mar 2000 12:08:39 -0500 Received: from travel-net.com (trj13.travel-net.com [207.176.160.13]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id NAA29967 for ; Sat, 11 Mar 2000 13:22:21 -0500 Message-ID: <38CA8EA9.BBA84039@travel-net.com> Date: Sat, 11 Mar 2000 13:21:29 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.72 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Delegation Argument References: <4.2.2.20000310211328.00bbc990@law.harvard.edu> <200003111757.MAA27127@soggy-fibers.ai.mit.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > nahal@earthlink.net writes: > > This is especially true when said copyright holder is a commercial > > for-profit entity with extreme interest in the protection of the material: > > preventing negative public discussion about the material, it's use, or > > applicability to specific situations; discouraging negative publicity while > > implicitly providing license to those who wish to praise the strength of the > > material at hand. This is akin of the kinds of restrictions in most NDAs, > > and I wonder if a) the public at large is ready to digest, understand, and > > comply with terms similar to these, and b) the extent of the First Amendment > > chilling this would generally have. > > NDAs are a good example, but an even better one might be the clauses > in some software license agreements which forbid publication of any > benchmarks without the consent of the licensor. For instance, the > license on evaluation copies of the Oracle 8i database says: > > "Customer shall not... disclose results of any benchmark tests of > any Program to any third party without Oracle's prior written > approval." > > (I think the licenses on commercial-use copies have similar clauses, > but I don't have one handy). Got several instances of Oracle licences right here on the shelf. The same kind of clauses appear in some of the older production releases. FYI it IS possible to get Oracle to waive this clause occasionally. But you have to be a big organization with lots of clout... > > I imagine that anyone associated with "Mission to Mars" is wishing > right now that they had the same rights to control reviews of their > product that Oracle is claiming here... > > rst -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:08:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10508 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:08:49 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10505 for ; Sat, 11 Mar 2000 12:08:48 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id NAA15161 for ; Sat, 11 Mar 2000 13:22:00 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA27206; Sat, 11 Mar 2000 13:21:58 -0500 (EST) Date: Sat, 11 Mar 2000 13:21:58 -0500 (EST) Message-Id: <200003111821.NAA27206@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA case with their buzzword: PIRACY In-Reply-To: <38CA69EE.5CDBB561@stad.dsl.nl> References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> <38CA69EE.5CDBB561@stad.dsl.nl> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom den Duijf writes: > I'm very unhappy with rob's state of mind about propoganda.... > > If we can effectively benefit from from a very clear OVERsimplified > story, I think we should use it. Yeah, but in court, we can't --- the other side has trained legal eagles that feast on people who try. PR is a different thing entirely, but that's not what we're discussing here. That said, I'm worried a bit myself that rhetoric has an importance here which we shouldn't undersell --- if we want to establish, for instance, that 2600 is publishing the results of research into computer security that are in the scope of 1201(g) (the encryption research exceptions), we could do that by examining the facts --- the nature of the articles it publishes, and so forth --- but in court, it might be more effective, if possible, to get Steve Bellovin, Gene Spafford and Bruce Schneier (if they're willing!) to say that's what it is. (And those three might well be a better trio than, say, Mudge, Dan Farmer, and Wietse Venema not so much because they're better qualified to judge, but simply because the first groups' credentials --- AT&T fellow, full professor at Purdue and AAAS fellow, and codeveloper of an AES candidate respectively --- are easier to explain to someone like Kaplan than the second groups' --- security consultants and developers of L0phtCrack (Mudge) and SATAN (Farmer and Venema)). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:23:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12113 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:23:54 -0500 Received: from dial151.cybermesa.com (dial151.cybermesa.com [209.12.75.151]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA12110 for ; Sat, 11 Mar 2000 12:23:51 -0500 Received: (from paul@localhost) by dial151.cybermesa.com (8.8.7/8.8.7) id LAA00746 for dvd-discuss@eon.law.harvard.edu; Sat, 11 Mar 2000 11:40:05 -0700 Date: Sat, 11 Mar 2000 11:40:04 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000311114003.A659@localhost> References: <20000310221659.18355.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000310221659.18355.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 10, 2000 at 05:16:59PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 10, 2000 at 05:16:59PM -0500, Joshua Daub wrote: > > > Mr. Ian Hay wrote: > >Here are some non-dead-end ideas: > > > >(1) This circumventing device does not fit into 1201(a)(2) because >it is > >primarily used for "authorized" circumvention as required by >the Act. If > >DeCSS is used to view a legally purchased DVD, the >purchase price is > >consideration for the "authorization". See my post >of Saturday March 4 > >with the subject "Authorization: Another way of >seeing it" for a more > >elaborate explanation. I personally think >this is the best of the bunch, > >despite the absence of substantial comment. > > This is dead. Here are the reasons: > > 1. Nowhere does the DMCA state anything about "authorized circumvention." Yes, but why does DeCSS get classified as circumvention? I don't see how "with authority" can attach to a player device. If "authority" never attaches to a player, how can § 1201(a)(2) distinguish circumventing from non-circumventing _players_? 17 U.S.C. § 1201(a)(3): o (3) 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. 1. DeCSS needs information to "circumvent" in the sense of § 1201(a)(3)(A). That information is a cryptographic player key or the title key off the DVD. The player key or the title key are the same "information" needed in (a)(3)(B) to meet a requirement for "effectively controls access." Only "authority" might differ. 2. The "descramble" that leads to "circumvent" in (A) is, for all intents and purposes, the very same "process," or "treatment" in "ordinary" "operation" used to meet a requirement for "effective" "measure" in (B). Only "authority" might differ. 3. (a)(3)(B) defines "effectively controls access" in terms of "measures," that are undone with the authority of the copyholder, to gain access. "Access" in general is still undefined. This is a problem. Does "access" include "descrambling" and "performance", or only "descrambling" without "performance"? A. Take a DVD-player, licensed by DCCA, and load a non-infringing, CSS scrambled, "home use only" DVD into the player. Watch it at home, and alone. This is not circumvention. It is with authority of the copyright holder. B. Use the same player and DVD to make a public, for-profit performance. This infringes because it is made without authority for public performance, § 106(4). Is this the same authority referred to in § 1201(a)(3)? Could the copyright holder grant "authority" for "descrambling" in a public context but not authority for a public "performance"? We need a non-circular definition of "access." C. The descrambling was done by a device, built, licensed and operated by persons other than the copyright holder. How can any authority of the copyright holder attach to the player device? D. "Authority" is not defined in § 101. My conclusion is that authority attaches to the DVD media, and perhaps to a particular person who is granted authority to do things listed in § 106. Given these points, how can § 1201(a)(2) distinguish between players licensed by DCCA and those not licensed? I see no legal or factual basis to tell them apart at the stage of trafficking. No acts of circumvention have occurred. It looks to me like I can use either type of device to circumvent later. It also looks to me like I can use either type of device for non-circumventing access later (because authority stems from the copyright holder, not the player manufacturer.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:41:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13305 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:41:39 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13302 for ; Sat, 11 Mar 2000 12:41:38 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id LAA23997 for dvd-discuss@eon.law.harvard.edu; Sat, 11 Mar 2000 11:05:16 -0800 Date: Sat, 11 Mar 2000 11:05:15 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA case with their buzzword: PIRACY Message-ID: <20000311110515.C15370@duskglow.com> References: <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> <38CA69EE.5CDBB561@stad.dsl.nl> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <38CA69EE.5CDBB561@stad.dsl.nl>; from tomddcs@stad.dsl.nl on Sat, Mar 11, 2000 at 04:44:46PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 11, 2000 at 04:44:46PM +0100, Tom den Duijf wrote: > hello list, > > I'm very unhappy with rob's state of mind about propoganda. > I disagree. I am fully in agreement with his state of mind. > In (m)any conflict/war of this sort you find propoganda is beiing used > if you like it or not. > This is true. But this list is not for our benefit, and if the lawyers do not like what they are seeing here (and if I were a lawyer, I wouldn't), they will simply go away. You'd be talking to yourself. Would you want that? > If we can effectively benefit from from a very clear OVERsimplified > story, I think we should use it. > No. Because we cannot benefit from it. What good would it do us or the lawyers? > Their story about piracy stinks, and we have to "proof" that it stinks > Yes. Legally. Not through propaganda. > You can do this by "selling" your own story > DEAD WRONG. You can do this by proving your story legally, researching it, coming up with counterarguments that stand up legally. Judges have very little tolerance for unfounded propaganda, once they find out that's what it is. > If we lose this case, it will be (partly) because their propaganda was > "selling" better. > Wrong. It'll be because 1) we didn't come up with a good defense 2) they did. In pulic opinion, propaganda is important. In court, this is not a PR war. Maybe you should decide who you are trying to help? > So to Rob i would say stop wining(?) about propaganda. We do have very > Honest case, I would say that you're cluttering up the list defending something that should not be defended. > which is so important, that we (sadly) can not do without a fair amount > of effective > "propaganda". > Nope. PR is for the press and popular public opinion. We are not interested in that. We want arguments and defences, based on SOUND LEGAL REASONING, that will help the lawyers to win their case in a COURT OF LAW. We are not playing here and unfounded propaganda will do nothing but harm us. Why can't you understand that simple fact? We are not here to play with our- selves. Stand around in a circle shouting "oh, yes! DeCSS is RIGHT! Fair Use is good! 1201 should be unconstitutional!" Why? "Because it's right!" Why? "Because I said so". Can you prove it? "Oh yes, here's a ruling taken out of context..." Not going to work. You want propaganda? Go to 2600.com, print out several hundred of their flyers, print one as a full page ad in the NYT, pass out the others in a movie theater. You want propaganda, start up your own mailing list called "dvd-propaganda". If it means this list will start to turn back towards the matter at hand, I'LL SET THE DAMNED THING UP. An audience with a lawyer is not something that happens lightly and you should stop playing with it. This is their ball game and they could take their ball and go home and where would we be? Justa bunch of techies talking amongst each other with no real purpose. Again: THIS IS FOR THE LAWYERS. NOT FOR US. WHAT YOU "FEEL" MEANS NOTHING. WHAT YOU CAN *PROVE* MEANS EVERYTHING. LEGALLY, NOT USING COMMON-SENSE. If you want me to be more blunt, I can, and probably will if I see another post like this. I just don't understand why you want to shoot yourself in the foot just to espouse your ideas, meanwhile cluttering the list and detracting from what we are really trying to accomplish. --Russell > > further... > Let's always be prepared for losing this case and prepare for strategies > when this happens. > so let's also devellop strategies that go beyond these particular > lawcases > > > Tom den Duijf > Leiden, Holland > > > > > greslin@linuxpower.org wrote: > > > > On Thu, Mar 09, 2000 at 12:45:56PM -0800, Kent Nguyen wrote: > > > > > > > > > On Wed, 8 Mar 2000 greslin@linuxpower.org wrote: > > > > > > > On Wed, Mar 08, 2000 at 10:11:16AM -0800, Bryan Taylor wrote: > > > > > > > > > > Any feedback would be appreciated, but I'm not going to debate the > > > > > points in it. The purpose of this essay is to advocate a position, not > > > > > to be "fair" to both sides of the debate. If you have evidence that > > > > > supports or refutes anything in particular, that would be most helpful. > > > > > > > > Bryan.. what you're describing in this paragraph is propaganda, not information. > > > > How exactly does this help anyone when you say out front that you only > > > > intend to tell half of the story? > > > > > > > > I sincerely doubt that the EFF attorneys are looking for an op-ed column; > > > > it seems to me that what they're asking for is an intelligence report. You > > > > don't write a useful intelligence report - or a scientific paper, or a legal > > > > analysis - by advocating positions. You show facts, build logics, and then > > > > accept the end results with a degree of honesty and integrity. > > > > > > > > Anything else is useless flag-waving and ego-thumping. > > > > > > I agree. To a certain extent all "logic" has a sway, a > > > position. Scientific papers have a position. Suddle but it has a > > > position. Thus makes it bias. The judge in New York shows great > > > bias. It's hard or even impossible to convince a judge once he is being > > > bought. > > > > Excuse me.. but did you have a point in this post? You start by saying > > "I agree" to my statement and then follow it up by arguing that it's okay > > to be biased because everyone's doing it these days. Then you ramble on > > for several paragraphs, not really making any sense. > > > > Let me ask *this* question - is there anyone, absolutely anyone, reading > > this forum who believes that honesty, integrity and a respect for the facts > > is less important than winning this case? I'd really like to know, because > > if we're going to be a propaganda farm then I signed up with the wrong > > camp and would like to be let off at the next stop. > > > > Rob Warren > > greslin@linuxpower.org > > www.iag.net/~aleris -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 12:43:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13471 for dvd-discuss-outgoing; Sat, 11 Mar 2000 12:43:55 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13449 for ; Sat, 11 Mar 2000 12:43:54 -0500 Received: from bugbug (max01-29.suba.com [206.69.121.221]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id MAA17779 for ; Sat, 11 Mar 2000 12:57:03 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA casewith their buzzword: PIRACY Date: Sat, 11 Mar 2000 12:56:10 -0600 Message-ID: <000301bf8b8b$77282d60$dd7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Importance: Normal In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve said: > Here's an approach. Walk into court and bring in an expert witness who > has the technical skills to be a pirate. Have him come in and demonstrate > all the variety of tools that exist to allow him to copy a DVD without > using DeCSS. Then ask him this question: > > Lawyer: "Why do you need DeCSS to pirate DVD's?" > Pirate: "I don't" > Lawyer: "Then why would somebody interested in pirating DVD's write > DeCSS?" > Pirate: "I can't fathom it. I can copy DVD's at will without running > afoul of the DMCA, but DeCSS doesn't give any new capabilities and > obviously risks prosecution under the DMCA". > > Or something like that... > > ---Steve > This won't be helpful, true as it may be, because it isn't whether you can pirate DVDs without DeCSS - obviously you can - but whether DeCSS illegally circumvents the MPAA's access control on DVDs. Showing that you can pirate DVDs without it only shows that there is more than one way to do it; the challenge before us in this case is to show something positvely about DeCSS. From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 13:16:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14693 for dvd-discuss-outgoing; Sat, 11 Mar 2000 13:16:25 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA14690 for ; Sat, 11 Mar 2000 13:16:24 -0500 Received: (qmail 32402 invoked from network); 11 Mar 2000 19:25:40 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 11 Mar 2000 19:25:40 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id LAA01742; Sat, 11 Mar 2000 11:29:57 -0800 Date: Sat, 11 Mar 2000 11:29:57 -0800 Message-Id: <200003111929.LAA01742@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Nimmer, legislative history, access, and use Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns wrote: >> But, "if a guest invited inside the manor contravenes the seigneur's >> edicts, then the trespass at hand differs qualitatively from breaking and >> entering. Thus the basic provision [1201(a)(1) still] is inapplicable to >> 'the subsequent actions of a person once he or she has obtained authorized >> access to a copy of a work protected under Title 17, even if such actions >> involve circumvention of additional forms of technological protection >> measures.'" Nimmer at 12A-31, quoting H.Rep. at 18, S. Rep. at 28. "Once > >So, who owns the DVD that you have purchased? This talk of owning a house >and somebody breaking in, implies to me the attitude that the MPAA owns >your DVD. But in fact, I went out, purchased the disc, and was never >asked to commit to any license agreement for this disc. So, it would seem >that in fact, I'm buying something and owning it, but yet some corportion >is allowed to tell me how I access it and when. > >I find an interesting parallel in the realm of automobiles. Don't know >how relevant this is, but inside most cars today there is a little >computer chip that regulates how fast your car can go. This is to bring >the cars into compliance with emissions regulations. Now, you, as the >owner of a car can go out and cirumvent the access control on your car's >higher speeds. There's no law preventing this, the only relevant law is >the one that says your emissions have to be at a certain level. Changing the chip does not in itself imply that your emissions level would cross the legal level. Neither does overclocking constitute a infringement against the producer of the chip. >---Steve > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 13:45:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16586 for dvd-discuss-outgoing; Sat, 11 Mar 2000 13:45:11 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16583 for ; Sat, 11 Mar 2000 13:45:10 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id OAA00322 for ; Sat, 11 Mar 2000 14:58:13 -0500 (EST) Message-Id: <4.1.20000311143313.00c54220@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 11 Mar 2000 15:01:59 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA case with their buzzword: PIRACY In-Reply-To: <20000311110515.C15370@duskglow.com> References: <38CA69EE.5CDBB561@stad.dsl.nl> <20000308205309.B12621@linuxpower.org> <20000308225258.D12621@linuxpower.org> <38CA69EE.5CDBB561@stad.dsl.nl> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The kind of "propaganda" we need in court must be based on facts demonstrated to the judge, and on existing law and precedent. We need to translate fuzzy feelings that this law is "a bad thing" into language that the judge will accept. To do that, we need to have the facts straight -- if a fact hurts the DeCSS case, better to know it now and show why it's irrelevant than to have it come up for the first time in a courtroom argument; if a fact helps the case, push it for all it's worth and find experts to testify about it. Misrepresenting the facts where they don't look good is simply unhelpful. The same is true on the legal front. We can't ignore bad cases or bad language in the statutes, but we must distinguish them away and poke holes in them. Policy arguments are helpful, but they must be built on a solid background of facts and law. If you're unsure of the facts, or can suggest an argument that might work depending on whether the facts are right, ask. If it's not in the FAQ, ask or help us to add the answer. Please try to make it clear when you know something to be a fact (and how we might prove it), and when you are just speculating. If you disagree with a stated fact, please try to help us figure out how we'd find the correct answer. If you want another list, say dvd-activism, for broad simplistic arguments, I too would be happy to create one. When lobbying against passage of new laws or trying to rally public support, that type of argument may help. Since it won't carry the day in court, however, I'd like to keep this list focused on approaches that will help. --Wendy At 11:05 AM 3/11/00 -0800, rmiller@duskglow.com wrote: >On Sat, Mar 11, 2000 at 04:44:46PM +0100, Tom den Duijf wrote: >> hello list, >> >> I'm very unhappy with rob's state of mind about propoganda. >> >I disagree. I am fully in agreement with his state of mind. > >> In (m)any conflict/war of this sort you find propoganda is beiing used >> if you like it or not. >> >This is true. But this list is not for our benefit, and if the lawyers do >not like what they are seeing here (and if I were a lawyer, I wouldn't), they >will simply go away. You'd be talking to yourself. Would you want that? > >> If we can effectively benefit from from a very clear OVERsimplified >> story, I think we should use it. >> [...] >> which is so important, that we (sadly) can not do without a fair amount >> of effective >> "propaganda". >> >Nope. PR is for the press and popular public opinion. We are not interested >in that. We want arguments and defences, based on SOUND LEGAL REASONING, that >will help the lawyers to win their case in a COURT OF LAW. > >We are not playing here and unfounded propaganda will do nothing but harm us. --- Wendy Seltzer Fellow, Berkman Center for Internet & Society at Harvard Law School wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 13:56:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17734 for dvd-discuss-outgoing; Sat, 11 Mar 2000 13:56:07 -0500 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17731 for ; Sat, 11 Mar 2000 13:56:07 -0500 Received: from 208-58-199-34.s288.tnt11.lnhva.md.dialup.rcn.com ([208.58.199.34] helo=[208.58.199.72]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12TsCI-0000KE-00 for dvd-discuss@eon.law.harvard.edu; Sat, 11 Mar 2000 15:09:15 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Sat, 11 Mar 2000 15:08:37 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Nimmer, legislative history, access, and use Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >I find an interesting parallel in the realm of automobiles. Don't know >how relevant this is, but inside most cars today there is a little >computer chip that regulates how fast your car can go. This is to bring >the cars into compliance with emissions regulations. Now, you, as the >owner of a car can go out and cirumvent the access control on your car's >higher speeds. There's no law preventing this, the only relevant law is >the one that says your emissions have to be at a certain level. > Off topic, but see: Motor & Equipment Manufacturers Ass'n v Nichols 142 F.3d 449, concerning California's requirement that Emission Controller Chips be tamperproof, and EPA's approval of said requirement. Held for EPA. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 14:31:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23498 for dvd-discuss-outgoing; Sat, 11 Mar 2000 14:31:21 -0500 Received: from mail2.teleport.com (mail2.teleport.com [192.108.254.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA23491 for ; Sat, 11 Mar 2000 14:31:20 -0500 Received: (qmail 10419 invoked from network); 11 Mar 2000 20:44:28 -0000 Received: from b48-01-07.pdx.du.teleport.com (HELO ?216.26.15.12?) (216.26.15.7) by mail2.teleport.com with SMTP; 11 Mar 2000 20:44:28 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <20000311114003.A659@localhost> References: <20000310221659.18355.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 10, 2000 at 05:16:59PM -0500 <20000310221659.18355.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Sat, 11 Mar 2000 12:14:34 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:40 AM -0800 3/11/2000, Paul Fenimore wrote: >C. The descrambling was done by a device, built, licensed >and operated by persons other than the copyright holder. How >can any authority of the copyright holder attach to the player >device? Well. The close ties between the MPAA, DVD-CCA, and the player manufacturers might argue against this. Player manufacturers need a key from DVD-CCA, and CSS-encoded disks carry all the available keys to enable them to be played on the specific players that use those keys. And a DVD could lock out a player by leaving its key off. So you could argue that the studio has authorized only the specific player manufacturers that have licensed the keys in question, to play their CSS-encoded DVDs. (On the other hand, I don't think either the studios or the DVD-CCA can afford to make too much of this argument, because it does cause the antitrust beast to wake up and sniff the air with interest. It's awfully close tying, to the point of uniting the interests of all three parties in limiting the available DVD players.) -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 14:49:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26664 for dvd-discuss-outgoing; Sat, 11 Mar 2000 14:49:56 -0500 Received: from swan.prod.itd.earthlink.net (swan.prod.itd.earthlink.net [207.217.120.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26661 for ; Sat, 11 Mar 2000 14:49:54 -0500 Received: from cqlap (sdn-ar-001casfrMP223.dialsprint.net [158.252.208.225]) by swan.prod.itd.earthlink.net (8.9.3/8.9.3) with SMTP id NAA07555 for ; Sat, 11 Mar 2000 13:03:04 -0800 (PST) From: "Neil" To: Subject: [dvd-discuss] Are DVDs explicitly software? Date: Sat, 11 Mar 2000 13:01:06 -0800 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Are DVDs explicitly software? (where shrinkwrap licenses and other restrictive terms of use are permitted?) I seem to remember a case where a bookstore owner got into a fight with a book publisher over 'license terms' that precluded his ability to sell the merchandise below a certain price. The bookstore owner objected, claiming he had already paid for the books, and they were "his property to deal with", excepting for publisher/author copyrights on the material. When taken to court, the judge agreed the embodyment of the media in which the copyright material found expression was owned by the bookstore owner, and he was free to do with them as he pleased, as long as it didn't violate the copyright owner's rights. (If only I had access to Lexis, I'd go dig this up). So: if what I remember above is true... Since when did DVDs become software? The precedent then is: eBooks, eNewspapers, eNewsAlerts over my pager, etc. become 'software', and my ability to have 'fair use' of the content becomes alarmingly chilled. I also seem to remember reading a reason why patents and trademarks were invented: to share knowledge while providing a means to publicly identify the owners of the materials in question. Since when does secrecy of protected materials further fair use doctrines as warranted by Congress in the creation of the PTO? Seems to me that the reasonings behind the PTO's establishment and the DMCA are at odds. --Neil From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 18:13:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA11065 for dvd-discuss-outgoing; Sat, 11 Mar 2000 18:13:00 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA11049 for ; Sat, 11 Mar 2000 18:12:59 -0500 Received: from bugbug (max01-15.suba.com [206.69.121.207]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA24144 for ; Sat, 11 Mar 2000 18:26:07 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Sat, 11 Mar 2000 18:25:15 -0600 Message-ID: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 In-Reply-To: <20000311114003.A659@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > On Fri, Mar 10, 2000 at 05:16:59PM -0500, Joshua Daub wrote: > > > > > > Mr. Ian Hay wrote: > > >Here are some non-dead-end ideas: > > > > > >(1) This circumventing device does not fit into 1201(a)(2) > because >it is > > >primarily used for "authorized" circumvention as required by > >the Act. If > > >DeCSS is used to view a legally purchased DVD, the >purchase price is > > >consideration for the "authorization". See my post >of > Saturday March 4 > > >with the subject "Authorization: Another way of >seeing it" for a more > > >elaborate explanation. I personally think >this is the best > of the bunch, > > >despite the absence of substantial comment. > > > > This is dead. Here are the reasons: > > > > 1. Nowhere does the DMCA state anything about "authorized > circumvention." > > Yes, but why does DeCSS get classified as circumvention? I don't see > how "with authority" can attach to a player device. If "authority" never > attaches to a player, how can § 1201(a)(2) distinguish circumventing > from non-circumventing _players_? It seems to me your postition rests on the statements: "if sale then (authority to view) = (authority to circumvent access control)" and "DeCSS =another DVD player by virtue of the functionality it shares with any licensed DCCA DVD player". In a nutshell, DeCSS is not circumventing tech because the authority to view is implicit in the sale, and because it is the sale of the DVD which confers the authority to view, not the sale of the player. While this has definitely opened in my mind the question of what makes an approved player different from DeCSS (other than that it's approved), it may be a jump to say that the judge will look on DeCSS as another player simply because its functionality is similar or even exactly like an approved player. In fact, I think he may consider it immaterial, as this would mean that any circumvention of an access control that worked by the same method as the approved method of access would not be illegal. However, going from Nimmer, if access to a work is like entering a house, this would be like saying that picking the lock on the door is okay because it works like a key. It is not the method of entry but the entry itself which is disallowed by 1201. Second, as to "if sale then (authority to view) = (authority to circumvent access control)" The MPAA will say "No." And the judge will probably agree that the "authority" in 1201a3 is specifically the permission to circumvent the access control. The problem with this is not that it is unreasonable, but that I think it is an uphill argument. The MPAA can easily throw rocks in our way with this one, just by arguing that there is a distinction between authority to view and authority to cirvumvent access control, and granting of the one doesn't mean granting of the other, and that it makes no sense that they would grant the latter through sale anyway because that would, from the MPAA's point of view, defeat the purpose behind the access control. Then they might quote Wendy's Nimmer to the effect that access is akin to entering a house, and circumventing access control is akin to breaking into a house one was not given leave to enter. In other words, that the authority under copyright to view is different from the "paracopyright" authority to enter the house, and that therefore the one permission is not commensurate with the other. That would be a very big stone to move I think. Could the copyright holder grant "authority" for > "descrambling" in a public context but not authority for a public > "performance"? We need a non-circular definition of "access." > > C. The descrambling was done by a device, built, licensed > and operated by persons other than the copyright holder. How > can any authority of the copyright holder attach to the player > device? > > D. "Authority" is not defined in § 101. > > My conclusion is that authority attaches to the DVD media, and > perhaps to a particular person who is granted authority to > do things listed in § 106. There will have to be a positive proof showing why it is necessary to take this interpretive step. Without a proof our argument will become "they say it's that, but we say it's this" and IMHO the MPAA will win an argument like that, because their position will carry the least interpretive baggage ("this is what "authority" means, and this is all that it means"). > > Given these points, how can § 1201(a)(2) distinguish between > players licensed by DCCA and those not licensed? I see no legal > or factual basis to tell them apart at the stage of trafficking. > No acts of circumvention have occurred. It looks to me like I can > use either type of device to circumvent later. It also looks to me > like I can use either type of device for non-circumventing access > later (because authority stems from the copyright holder, not > the player manufacturer.) > > > Paul Fenimore > > From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 18:55:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15262 for dvd-discuss-outgoing; Sat, 11 Mar 2000 18:55:53 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15259 for ; Sat, 11 Mar 2000 18:55:52 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id UAA23624 for ; Sat, 11 Mar 2000 20:09:04 -0500 (EST) Message-Id: <4.2.2.20000311183437.00ba3e10@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 11 Mar 2000 20:09:04 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Nimmer, legislative history, access, and use In-Reply-To: References: <4.2.2.20000308134706.00b73420@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:40 AM 3/11/00 -0600, sterno@gemini.bigbrother.net wrote: >So, who owns the DVD that you have purchased? This talk of owning a house >and somebody breaking in, implies to me the attitude that the MPAA owns >your DVD. But in fact, I went out, purchased the disc, and was never >asked to commit to any license agreement for this disc. So, it would seem >that in fact, I'm buying something and owning it, but yet some corportion >is allowed to tell me how I access it and when. The copyright holder continues to own the exclusive rights of reproduction, distribution, creation of derivative works, public performance over the work, while you own the physical medium of the DVD and the right under the first sale doctrine to resell that copy. You've never had the right to do absolutely anything with your copy of a copyrighted work. The imposition of access controls raises far more questions about what you can sell -- and what you actually own, though. I read Nimmer's reinterpretation to say that once you've bought the DVD, you still don't own the house, but you get a free pass to visit any part of it any time you want (subject only to ordinary copyright laws). The MPAA's comments to the Copyright Office, , however, suggest that it believes its rights to control access go much further: "while [above-described] mechanisms serve to control access by allowing it to authorized users and denying it to unauthorized users, the effect of these measures is not always a simple binary matter...." We may be able to use their submission as an admission of overreaching. Another Nimmer cite, Brains and Other Paraphernalia of the Digital Age, addresses the diminution of ownership through licensing: I've been trying to say that access controls unfairly lessen the value of purchases by imposing unenumerated, license-like, limitations on use. --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 19:45:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18640 for dvd-discuss-outgoing; Sat, 11 Mar 2000 19:45:25 -0500 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18626 for ; Sat, 11 Mar 2000 19:45:24 -0500 Received: from localhost (pool0979.cvx12-bradley.dialup.earthlink.net [209.179.229.214]) by gull.prod.itd.earthlink.net (8.9.3/8.9.3) with SMTP id RAA02022 for ; Sat, 11 Mar 2000 17:58:35 -0800 (PST) From: "Ammon Dorny" To: Subject: RE: [dvd-discuss] Nimmer, legislative history, access, and use Date: Sat, 11 Mar 2000 17:58:26 -0800 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <000301bf8b71$25b75380$cd7945ce@bugbug.WinNATDomain> X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here you go..... Nimmer, Melville B. and David Nimmer. Nimmer on Copyright. 6 vols. New York: Matthew Bender, 1996 with periodic supplements). Any bookseller For a crash course on copyright check out this resource http://www.umi.com/hp/Support/DExplorer/copyrght/ cheers, Ammon Dorny >Where can we get this Nimmer? I want to read him myself. Is it online? sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 11 23:59:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09685 for dvd-discuss-outgoing; Sat, 11 Mar 2000 23:59:42 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA09682 for ; Sat, 11 Mar 2000 23:59:37 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id XAA05865 for ; Sat, 11 Mar 2000 23:15:39 -0600 Date: Sat, 11 Mar 2000 23:15:39 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] What about WIPO? In-Reply-To: <4.2.2.20000311183437.00ba3e10@law.harvard.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Something ocurred to me, and I'm not sure that it is of any help, but figured I'd throw it out anyhow. The DMCA was created in an effort to bring US copyright law into compliance with WIPO standards. As I understand it, the DMCA goes much further in what it restricts than WIPO does. So, I'm wondering if we can use that fact to benefit us in some way. Obviously WIPO rules don't apply to the US unless enacted by Congress, but perhaps it can act as a measuring stick for determining if the DMCA may go too far in what it regulates. Perhaps I'm grasping at straws, but figured I'd share the idea and see if it went anywhere. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 12 07:56:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA24520 for dvd-discuss-outgoing; Sun, 12 Mar 2000 07:56:14 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA24517 for ; Sun, 12 Mar 2000 07:56:12 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id QAA07338 for ; Sun, 12 Mar 2000 16:09:20 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 12 Mar 2000 16:09:20 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA casewith their buzzword: PIRACY In-Reply-To: <000301bf8b8b$77282d60$dd7945ce@bugbug.WinNATDomain> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 11 Mar 2000, sparky wrote: >circumvents the MPAA's access control on DVDs. Showing that you can pirate >DVDs without it only shows that there is more than one way to do it; the >challenge before us in this case is to show something positvely about DeCSS. But... If you can make the case a 1st Amendment one (like EFF people are likely attempt, at least at some scale), the above demonstration becomes useful as a way to prove that DMCA fails strict scrutiny. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 12 12:00:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11632 for dvd-discuss-outgoing; Sun, 12 Mar 2000 12:00:17 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA11629 for ; Sun, 12 Mar 2000 12:00:15 -0500 Received: (qmail 11652 invoked by uid 500); 13 Mar 2000 11:49:38 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 11:49:38 -0000 Date: Mon, 13 Mar 2000 03:49:38 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS is SOURCE CODE; It's a human rights issue. In-Reply-To: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hey guys, thought of another point we can make. DeCSS is SOURCE CODE. The judge refer to it as a "device". The DVD-CCA refers to it as a "program". The EFF called it a "utility". Published of source code is protected under the Constitution. The preliminary injunction here is the fact that the judge interpret DeCSS as a "device" to circumvent access control. The judge goes to an extent to qualify source code as a mean to circumvents access control. This is definitely against the Constitution. So yah, it's a human rights issue. Source code published to decipher SSL is in violation under this interpretation from Judge Kaplan. I can think of a couple of "source code" software that the interpretation from Judge Kaplan of DMCA to qualify openssl and openssh illegal. From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 12 12:21:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13115 for dvd-discuss-outgoing; Sun, 12 Mar 2000 12:21:54 -0500 Received: from train.sdrm.org (cx48762-a.cv1.sdca.home.com [24.0.158.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13110 for ; Sun, 12 Mar 2000 12:21:52 -0500 Received: from localhost (wolfgang@localhost) by train.sdrm.org (8.9.3/8.9.3) with ESMTP id KAA20664 for ; Sun, 12 Mar 2000 10:34:36 -0800 Date: Sun, 12 Mar 2000 10:34:36 -0800 (PST) From: Lewis E Wolfgang To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Playstation 2 bypasses region controls Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA13112 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu (Found on www.gaming-intelligence.com/news/0003/n11a.html via slashdot) While this isn't a CSS issue, it certainly is a breach of the DVD copyright holder's authority. Would gaming-intelligence.com be in the same hot water because they are advertising a circumvention technology? I would assume that the same fundamental issues pertain to this and the DeCss brouhaha? Regards, Lew Wolfgang ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Play American DVDs on Japanese PlayStation 2 [03.11.00] » Simple controller codes make it possible. Two simple controller codes have recently surfaced that make it possible to play Region 1 (North America) DVDs on the PlayStation 2, a Region 2 (Japan and Asia) DVD player. Much like console videogames, DVDs are region encoded to dissuade consumers from importing titles from outside of the country. It was previously believed that the PlayStation 2 would only play Region 2 DVDs. These codes currently only work with about 50% frequency. We are currently unsure why they do not work 100% of the time; we believe they may be dependent on how hard the user presses the Dual Shock 2's analog buttons. If you own a PS2 and Region 1 movies, the GIA is interested in hearing about your experiences with the code, especially if you find a way to make Region 1 movies play with greater frequency. Please e-mail staff@thegia.com with the movie tested, code used, and the tries / success ratio. Both codes should be entered when the PlayStation 2 DVD bootup sequence begins fading to black. The buttons should be held until either the DVD movie starts up (1 line of Japanese) or a "region failed" message appears (2 lines of Japanese). If you get a region failed message, don't despair; just try again. The same disc will work some times and not others. The first code comes from the GIA's own J.T. Kauffman; it is apparently circulating Japanese message boards and web sites. The code is: hold down L1, Circle, and Select. This code has worked with both the Dual Shock 1 and 2 with about 40% accuracy. The second code comes from a friend of the GIA known as Barubary. The code is: press in L3 (the left analog stick) straight and hard. This code does not work with the Dual Shock 1, but works with the Dual Shock 2 with about 60% accuracy. While these codes certainly leave room for improvement, the advent of any region bypass is good news for system importers and DVD fans. The GIA will keep you posted on any new developments on the PS2 DVD front. From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 12 17:01:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA32593 for dvd-discuss-outgoing; Sun, 12 Mar 2000 17:01:38 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA32590 for ; Sun, 12 Mar 2000 17:01:37 -0500 Received: from bugbug (max01-59.suba.com [206.69.121.251]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id RAA14786 for ; Sun, 12 Mar 2000 17:14:48 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA casewith their buzzword: PIRACY Date: Sun, 12 Mar 2000 17:13:53 -0600 Message-ID: <000001bf8c78$a2812500$fb7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni wrote: > > On Sat, 11 Mar 2000, sparky wrote: > > >circumvents the MPAA's access control on DVDs. Showing that you > can pirate > >DVDs without it only shows that there is more than one way to do it; the > >challenge before us in this case is to show something positvely > about DeCSS. > > But... If you can make the case a 1st Amendment one (like EFF people are > likely attempt, at least at some scale), the above demonstration becomes > useful as a way to prove that DMCA fails strict scrutiny. Yes, but I think that a demonstration of this sort would only be considered material by the judge if it could show something specific about DeCSS. Of course I could be wrong about this (Wendy?). If you are not showing anything specific about DeCSS then such a demonstration would be nothing more than a head-on attack on 1201, completely out of context of the MPAA's suit. I am not against this, it just seems to me that, unless we are addressing the central concern, which is DeCSS's status as a circumventing device within the scope of 1201, unless this demonstration could be linked back to this central concern, the judge might consider it immaterial. sparky > > Sampo Syreeni , aka decoy, student/math/Helsinki university > > From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 12 19:38:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22753 for dvd-discuss-outgoing; Sun, 12 Mar 2000 19:38:24 -0500 Received: from mits_perth_com1.mitswa.com.au ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA22750 for ; Sun, 12 Mar 2000 19:38:21 -0500 Received: by intranet.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Mon, 13 Mar 2000 09:47:45 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF037055@intranet.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] DVD Drive == Player ?? Date: Mon, 13 Mar 2000 09:47:44 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Has much thought gone into considering that bare DVD drives for computers are effectively marketed as DVD players? DeCSS is only used for descrambling DVD content on these drives enabling them to be players. Does this mean that a DVD drive is not really an 'authorized player' It seems to me that if the drives are marketed as such (which they certainly are by the retailers) and the DVD to be played is a legal original then there is a very strong message that if you buy the drive and buy the disc you can watch the movie. The fact that the MPAA wants to tie in their version of DeCSS (their playing software) into the authorization process means that the drives should have the * descrambling software built into the drive * That it is not and the drives are effectively marketed as players means that DeCSS is just making up the difference between what is marketed and what we get. Hope these thought make some sense. cya, Andrew... http://www.opendesign.cx From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 00:16:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21972 for dvd-discuss-outgoing; Mon, 13 Mar 2000 00:16:51 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA21969 for ; Mon, 13 Mar 2000 00:16:51 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 9893E7709; Mon, 13 Mar 2000 00:30:34 -0600 (CST) Date: Mon, 13 Mar 2000 00:30:34 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000313003034.A12414@arh1176.urh.uiuc.edu> References: <20000310221659.18355.qmail@hotmail.com>; <20000310221659.18355.qmail@hotmail.com> <20000311114003.A659@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: ; from jaed@jaedworks.com on Sat, Mar 11, 2000 at 12:14:34PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 11, 2000 at 12:14:34PM -0800, Jeanne A. E. DeVoto wrote: > Well. The close ties between the MPAA, DVD-CCA, and the player > manufacturers might argue against this. Player manufacturers need a key > from DVD-CCA, and CSS-encoded disks carry all the available keys to enable > them to be played on the specific players that use those keys. And a DVD > could lock out a player by leaving its key off. So you could argue that the > studio has authorized only the specific player manufacturers that have > licensed the keys in question, to play their CSS-encoded DVDs. Might is be a problem for them, as DeCSS does have a Key implemented in it? Would it not fall to them to remove that key from the list of ones they encrypt their DVDs with? If authority exists in having a the disk accept your key (rather than the authority coming from the key itself) then the MPAA's case is greatly weakened, since their disks do not know well enough to not "authorize" the key DeCSS offers. -- Steven Barker scbarker@uiuc.edu I'm always looking for a new idea that will be more productive than its cost. -- David Rockefeller From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 00:45:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25536 for dvd-discuss-outgoing; Mon, 13 Mar 2000 00:45:53 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA25533 for ; Mon, 13 Mar 2000 00:45:52 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id C0F8A7709; Mon, 13 Mar 2000 00:59:36 -0600 (CST) Date: Mon, 13 Mar 2000 00:59:36 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) Message-ID: <20000313005936.B12414@arh1176.urh.uiuc.edu> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: ; from sterno@gemini.bigbrother.net on Fri, Mar 10, 2000 at 10:50:41AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 10, 2000 at 10:50:41AM -0600, Steve Stearns wrote: > Access controls do not have to be circumvented to view the DVD. CSS > controls access to the content of the DVD, limiting its viewing to those > who posess licensed CSS decoders. There is no cirumvention involved > there. The only time circumvention happens is when somebody tries to view > the DVD without using a licensed CSS decoder (i.e. DeCSS). Well, thats not well defined. Circumvention is when the copyrighted material is decrypted or unscrambled without the authority of the copyright holder. The question for the MPAA to answer in front of the judge, is "how do you grant authority to some owners of DVDs and not others? Is the authority granted through licenses with the DVD-CCA through to the manufacturers of DVD players and then finally to the consumer? Or is it implicitly granted to the owner of the DVD either under their first sale rights, or by the message 'For home viewing only'?" These are the questions that the MPAA will be faced with answering if they are going to prove that DeCSS is a circumvention device. On the list I hear a lot of "Authority is granted only if it's not circumvention" but that is circular. To be circumvention, it must be without authority, and authority is not defined anywhere clearly. We need to stick this to the MPAA and make them show where in title 17 "Authority of the copyright owner" is defined. We can convince the judge that, in lieu of any statutary definition, the law must favor the freedom of innocent people over the interests corperations. -- Steven Barker scbarker@uiuc.edu I'm always looking for a new idea that will be more productive than its cost. -- David Rockefeller From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 11:07:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21229 for dvd-discuss-outgoing; Mon, 13 Mar 2000 11:07:17 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA21167 for ; Mon, 13 Mar 2000 11:07:16 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 13 Mar 2000 09:20:47 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 09:20:45 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: sparky [mailto:sparky@suba.com] ... > You may argue that the right to view the contents of your DVD > is implicitly > given when you buy it; and you may even find law citations to > back you up > (and if you do please post them). BUT the problem with 1201 > is that this > right comes up hard against the law which is a law against > circumventing > access control. I think it is extremely unlikely that you will find a > precedent stating that by buying a work fixed on a medium protected by > access control that by that sale you are given the right to > circumvent the > access control, and the MPAA lawyers are going to make this > distinction if > we say "there's an implicit right to view". Given the DVD-case text that others just posted, it would seem that the right to view is explicit, not implicit. "The program contained in this LaserDisc is authorized for private home use only." -does- authorize it for private home use. Now we're back to the subject line: "ACCESS as USE". If we are authorized to USE the DVD, use implies (or more strongly, requires) access does it not? > Therefore it is a far better approach IMHO to find a way to > show that CSS > restricts non-infringing use shown to be protected under > copyright law - I think that this can be shown. I mean, we are now clearly authorized to "use" this DVD. But how? The clickwrap places no restrictions on the equipment required to "use" it. DeCSS would seem to be a perfectly valid way to make use of the DVD ... as long as it was for private viewing only. > which may indeed involve "access" though I've gotten the > impression that > "access" hasn't received much attention in past rulings of > the kind we need > from the courts - ; then we argue that DeCSS can be used for > non-infringing > uses covered under fair use, and basically in that way draw > DeCSS under the > fair use umbrella. > I think the artificial restriction of use in the face of an explicitly granted permission to use should be brought out. I think the explicit permission on the clickwrap is stronger than "fair use" ... but then I am not a laywer, or even a law student, and sometimes these things aren't supposed to make sense to a layman (or even an engineer). -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 11:40:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31680 for dvd-discuss-outgoing; Mon, 13 Mar 2000 11:40:26 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA31677 for ; Mon, 13 Mar 2000 11:40:24 -0500 Received: (qmail 22539 invoked by uid 500); 14 Mar 2000 11:29:42 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 11:29:42 -0000 Date: Tue, 14 Mar 2000 03:29:42 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] First Amendment. In-Reply-To: <20000313003034.A12414@arh1176.urh.uiuc.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu DeCSS is SOURCE CODE. The only thing I can see the source code in violation is the published licensed key that belongs to Xing. Beyond that, there's no argument why DeCSS is illegal. In related story: Here's an interesting article about Daniel Bernstein vs. the Justice Department http://news.cnet.com/news/0-1005-200-342175.html?owv The court rule in favor of Daniel Bernstein to allow his crypto source code be published. Kudos to the First Amendment! Offtopic: Did you know Daniel Bernstein is the author of qmail which is used by yahoo.com and hotmail.com? Daniel Bernstein rocks! Kent From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:26:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12630 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:26:03 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA12627 for ; Mon, 13 Mar 2000 12:26:02 -0500 Received: (qmail 22991 invoked by uid 500); 14 Mar 2000 12:15:15 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 12:15:15 -0000 Date: Tue, 14 Mar 2000 04:15:15 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu DeCSS is not a program. It hasn't been compiled to binary form yet. It is in source code form. We have to understand the stage of development of device. Here's the sequence: First you got the "source code", then you use a compiler to compile into a "program", and then you burn the program into a "device". Here's the process: source code --> program --> device Before you have anything, you gotta have ideas and speech. DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected under the First Amendment. Kent Nguyen From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:29:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13653 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:29:15 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13649 for ; Mon, 13 Mar 2000 12:29:09 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id KAA22031 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 10:52:23 -0800 Date: Mon, 13 Mar 2000 10:52:23 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313105222.B1515@duskglow.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from kent@newyen.com on Tue, Mar 14, 2000 at 04:15:15AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > > Before you have anything, you gotta have ideas and speech. > > DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected > under the First Amendment. > > Kent Nguyen Can you back up ANYTHING of what you're saying legally, using citations, case law, etc.? If you can't, then don't bother. Platitudes are never going to help. --Russell -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:30:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14012 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:30:18 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13981 for ; Mon, 13 Mar 2000 12:30:17 -0500 Received: from bugbug (max01-48.suba.com [206.69.121.240]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id MAA17212 for ; Mon, 13 Mar 2000 12:43:22 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 12:42:23 -0600 Message-ID: <000701bf8d1b$df4f1ac0$c87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Richard > Hartman > Sent: Monday, March 13, 2000 11:21 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] ACCESS as USE > > > > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > ... > > You may argue that the right to view the contents of your DVD > > is implicitly > > given when you buy it; and you may even find law citations to > > back you up > > (and if you do please post them). BUT the problem with 1201 > > is that this > > right comes up hard against the law which is a law against > > circumventing > > access control. I think it is extremely unlikely that you will find a > > precedent stating that by buying a work fixed on a medium protected by > > access control that by that sale you are given the right to > > circumvent the > > access control, and the MPAA lawyers are going to make this > > distinction if > > we say "there's an implicit right to view". > > Given the DVD-case text that others just posted, it would seem > that the right to view is explicit, not implicit. "The program > contained in this LaserDisc is authorized for private home use only." > -does- authorize it for private home use. Now we're back to the > subject line: "ACCESS as USE". If we are authorized to USE the > DVD, use implies (or more strongly, requires) access does it not? The problem is that viewing and access are probably two different things. As Paul Fenimore pointed out (in the 2nd? post to this string, which I started), access as a use would more or less be a new interpretation of what a use is; furthermore, Wendy Seltzer pointed out that the copyright authority Nimmer says that access is like entering a house, and use is like what you do once you're in the house. Based on this it seems unlikely that we will get anywhere by arguing that access is a form of use. Seeing as this argument is unlikely to be established by precedent, it would be easily challenged by the MPAA's lawyers, just by their asking us to provide such a precedent. "Access is use? Hm, that's interesting.. Where does it say that?" Then *they* point to Nimmer, and we're cooked. In fact, we stand to gain from distinguishing access *from* use. If access is not use, but the right to enter the house, then yes, we could say that the sale of the medium on which the work is fixed is commensurate with granting access to the house, permanently (it's a sale). But this has nothing to do with relinquished rights over the *work*, and nothing to do (except perhaps tangentially) with the "private home use" statement on the DVD. > > > > Therefore it is a far better approach IMHO to find a way to > > show that CSS > > restricts non-infringing use shown to be protected under > > copyright law - > > I think that this can be shown. I mean, we are now clearly > authorized to "use" this DVD. But how? The clickwrap places > no restrictions on the equipment required to "use" it. DeCSS > would seem to be a perfectly valid way to make use of the DVD > ... as long as it was for private viewing only. This sounds like it's going down the "DeCSS as another player" road.. I don't know yet exactly what DeCSS does, whether it can be actually used as a DVD player, but it's going to be an uphill battle to argue that because 1) DeCSS is for Windows, not Linux, and therefore you can't defend it by saying that you're allowed to view on any platform, and 2) DeCSS doesn't come with hardware, it's just software, and this means to get the DVD to a place where DeCSS could access to it, you'd probably have to have a licensed player to begin with. DeCSS' purpose as another player looks less and less likely. At any rate, showing CSS restricts fair uses of legally gotten works is not going to happen through saying that DeCSS is a valid use of the DVD. Probably specific fair uses of the DVD must be shown to be restricted (perhaps CSS does not allow any DVD to be usefully copied for archival purposes) and then DeCSS can be shown to allow these uses. That would show that, through shortsightedness on the part of the access control manufacturer (Xing) and user (the MPAA), DeCSS can be used in non-infringing ways. > > > > which may indeed involve "access" though I've gotten the > > impression that > > "access" hasn't received much attention in past rulings of > > the kind we need > > from the courts - ; then we argue that DeCSS can be used for > > non-infringing > > uses covered under fair use, and basically in that way draw > > DeCSS under the > > fair use umbrella. > > > > I think the artificial restriction of use in the face > of an explicitly granted permission to use should be > brought out. I think the explicit permission on the > clickwrap is stronger than "fair use" ... but then I am > not a laywer, or even a law student, and sometimes these > things aren't supposed to make sense to a layman (or > even an engineer). > > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:40:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19164 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:40:50 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19161 for ; Mon, 13 Mar 2000 12:40:48 -0500 Received: from bugbug (max01-48.suba.com [206.69.121.240]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id MAA17610 for ; Mon, 13 Mar 2000 12:54:02 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] First Amendment. Date: Mon, 13 Mar 2000 12:53:04 -0600 Message-ID: <000001bf8d1d$5d42f360$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent wrote: > > DeCSS is SOURCE CODE. > > The only thing I can see the source code in violation is the published > licensed key that belongs to Xing. Beyond that, there's no argument why > DeCSS is illegal. Kent, of course there are arguments why DeCSS is illegal. They're based on 1201, which states that access control circumvention is illegal, and also that trafficking in access control circumvention tech is illegal. You don't need an act of circumvention for there to be trafficking; it just needs to BE access control circumvention tech. Unless you have arguments stating a) why DeCSS is source code and not, say, a program, and b) why, as source code, DeCSS is not access control circumvention tech, then your statements won't address the issue. sparky From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:41:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19180 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:41:05 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA19177 for ; Mon, 13 Mar 2000 12:41:03 -0500 Received: (qmail 16677 invoked from network); 13 Mar 2000 18:50:28 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 13 Mar 2000 18:50:28 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id KAA17657; Mon, 13 Mar 2000 10:54:43 -0800 Date: Mon, 13 Mar 2000 10:54:43 -0800 Message-Id: <200003131854.KAA17657@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Russell Miller wrote: >On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: >> >> Before you have anything, you gotta have ideas and speech. >> >> DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected >> under the First Amendment. >> >> Kent Nguyen > >Can you back up ANYTHING of what you're saying legally, using citations, >case law, etc.? DeCSS has been compiled and has been tested with varying results. Otherwise we wouldn't have those screenshots, now would we? The fact is it is a program because the binary is also called DeCSS. And on 2600 you can bet binaries were available. Most of their ilk don't compile much. >If you can't, then don't bother. Platitudes are never going to help. > >--Russell > >-- >Russell miller - rmiller@duskglow.com - russell@know-where.com >----------------------------------------------------------------------- >The following sites are my own and do not necessarily represent >the views of any of my clients. > >http://www.duskglow.com >http://www.singlegeek.com >http://www.whathaveyoudone.org > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 12:45:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA21575 for dvd-discuss-outgoing; Mon, 13 Mar 2000 12:45:14 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA21507 for ; Mon, 13 Mar 2000 12:45:12 -0500 Received: (qmail 12542 invoked by uid 502); 13 Mar 2000 19:00:37 -0000 Date: Mon, 13 Mar 2000 14:00:37 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313140037.E16657@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Tue, Mar 14, 2000 at 04:15:15AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > DeCSS is not a program. It hasn't been compiled to binary form yet. It > is in source code form. The binary package being distributed around the Net sure isn't. It's a single .EXE file and two .DLL's. You have *seen* the program, haven't you? Which do you honestly think the DVD folks care about more - source code that a few techies know how to compile and use, or an executable Windows package that *anyone* can install and use in seconds? > We have to understand the stage of development of device. Here's the > sequence: > > First you got the "source code", then you use a compiler to compile into a > "program", and then you burn the program into a "device". > > Here's the process: > source code --> program --> device > > Before you have anything, you gotta have ideas and speech. Kent, do us all a favor. Go back and read the archives of the list. This was run to ground, and then six feet underground, in the first few days that this list was operational. *Please* don't go over old material as though you just came up with the idea. It wastes bandwidth and everyone's time. > DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected > under the First Amendment. *Sigh*. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:04:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29095 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:04:11 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA29092 for ; Mon, 13 Mar 2000 13:04:09 -0500 Received: from [38.32.78.43] (helo=ip43.bedford8.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12UaLF-0004pQ-00; Mon, 13 Mar 2000 14:17:25 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] acronym soup Date: Mon, 13 Mar 2000 19:16:06 GMT Message-ID: <38d43d27.11917690@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id NAA29093 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If you've been trying to keep up, recent changes at http://www.dvdcca.org/ will certainly spin some more letters your way. Click around the links, noting the page titles and URL... DVDCCA is now LMI DTCP appears to be DTLA At http://www.dvdcca.org/4centity/index.html we can now ingest CPSA and CPRM Why bother with [ISO; ECMA] standards when you can just fling letters out of a hat? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:14:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02650 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:14:09 -0500 Received: from mail2.teleport.com (mail2.teleport.com [192.108.254.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA02646 for ; Mon, 13 Mar 2000 13:14:08 -0500 Received: (qmail 15569 invoked from network); 13 Mar 2000 19:27:21 -0000 Received: from i48-25-32.pdx.du.teleport.com (HELO ?216.26.8.32?) (216.26.8.32) by mail2.teleport.com with SMTP; 13 Mar 2000 19:27:21 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 13 Mar 2000 11:13:42 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: RE: [dvd-discuss] ACCESS as USE Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 9:20 AM -0800 3/13/2000, Richard Hartman wrote: >Given the DVD-case text that others just posted, it would seem >that the right to view is explicit, not implicit. "The program >contained in this LaserDisc is authorized for private home use only." >-does- authorize it for private home use. Now we're back to the >subject line: "ACCESS as USE". If we are authorized to USE the >DVD, use implies (or more strongly, requires) access does it not? We've got a problem there, though, because such an argument implies that a studio can change the terms of fair use simply by modifying the boilerplate on their DVD package. If the phrase were changed to ""The program contained in this LaserDisc is authorized for private home use on an authorized DVD player only.", then we'd be right back where we started. I think this is a basic problem with any argument based on the wording on the package. That wording is under complete control of the studio that releases the DVD, and if it controls the extent to which fair use is allowed, then the copyright holder can restrict or eliminate fair use at will. -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:16:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03125 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:16:26 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA03122 for ; Mon, 13 Mar 2000 13:16:24 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id MAA30501 for ; Mon, 13 Mar 2000 12:32:38 -0600 Date: Mon, 13 Mar 2000 12:32:38 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: <000001bf8d1d$5d42f360$f07945ce@bugbug.WinNATDomain> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Kent, of course there are arguments why DeCSS is illegal. They're based on > 1201, which states that access control circumvention is illegal, and also > that trafficking in access control circumvention tech is illegal. You don't > need an act of circumvention for there to be trafficking; it just needs to > BE access control circumvention tech. Unless you have arguments stating a) > why DeCSS is source code and not, say, a program, and b) why, as source > code, DeCSS is not access control circumvention tech, then your statements > won't address the issue. Essentially, the right of free expression offsets the law about control circumvention technology. Recently there was a ruling which permitted a professor to post source code for encryption technology on-line. This is forbidden by laws passed by congrees, but was overriden by the free expression protections of the first amendment. The same theory may apply here. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:33:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05959 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:33:06 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05902 for ; Mon, 13 Mar 2000 13:33:05 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id MAA31226 for ; Mon, 13 Mar 2000 12:49:18 -0600 Date: Mon, 13 Mar 2000 12:49:18 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] ACCESS as USE In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > We've got a problem there, though, because such an argument implies that a > studio can change the terms of fair use simply by modifying the boilerplate > on their DVD package. If the phrase were changed to ""The program contained > in this LaserDisc is authorized for private home use on an authorized DVD > player only.", then we'd be right back where we started. Not necessarily. See here's the thing. If access is granted by the act of purchasing and they changed the license agreements on existing DVD's to bypass this loophole it wouldn't matter. If DeCSS is okay to use on some DVD's with CSS on them, then the DMCA doesn't hold water in court because you aren't cirumventing access to the newly licensed DVD's, just the old ones. Granted the same technology works for both, but suddenly DeCSS has application as something other than a device to bypass access control. > I think this is a basic problem with any argument based on the wording on > the package. That wording is under complete control of the studio that > releases the DVD, and if it controls the extent to which fair use is > allowed, then the copyright holder can restrict or eliminate fair use at > will. This is something congress is going to need to figure out. Is fair use something that should be force upon intellectual property holders even if they can find a way to prevent it without use of copyright? I think so, but it isn't clearly stated. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05899 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:32:59 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05894 for ; Mon, 13 Mar 2000 13:32:55 -0500 Received: from cdpage.com (ddsl91.dnvr.uswest.net [209.180.251.91]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id LAA06802 for ; Mon, 13 Mar 2000 11:46:25 -0800 (PST) Message-ID: <38CD4537.9F931EB8@cdpage.com> Date: Mon, 13 Mar 2000 12:44:55 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen wrote: Kent, your intentions may be the best, but you are not helping. PLEASE adjust your date, it may not be bothering you but it is extremely annoying to anyone you send mail to. And PLEASE read the archives. Otherwise, I think you can count on being filtered rather than read. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:34:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06901 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:34:46 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA06877 for ; Mon, 13 Mar 2000 13:34:44 -0500 Received: (qmail 12833 invoked by uid 502); 13 Mar 2000 19:50:08 -0000 Date: Mon, 13 Mar 2000 14:50:08 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313145008.G16657@linuxpower.org> References: <000001bf8d1d$5d42f360$f07945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Steve Stearns on Mon, Mar 13, 2000 at 12:32:38PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 12:32:38PM -0600, Steve Stearns wrote: > > Kent, of course there are arguments why DeCSS is illegal. They're based on > > 1201, which states that access control circumvention is illegal, and also > > that trafficking in access control circumvention tech is illegal. You don't > > need an act of circumvention for there to be trafficking; it just needs to > > BE access control circumvention tech. Unless you have arguments stating a) > > why DeCSS is source code and not, say, a program, and b) why, as source > > code, DeCSS is not access control circumvention tech, then your statements > > won't address the issue. > > Essentially, the right of free expression offsets the law about control > circumvention technology. Recently there was a ruling which permitted a > professor to post source code for encryption technology on-line. This is > forbidden by laws passed by congrees, but was overriden by the free > expression protections of the first amendment. The same theory may apply > here. Except for the fact that what's being argued about isn't necessarily the source code, but the executable. Read the New York transcript; while source code isn't explicitly being left out, it's fairly clear that it's the object code that people are concerned about. The argument used in New York was that the ability of object code to communicate idea is limited, and therefore irrelevant in terms of free speech. The "DeCSS = Free Speech" argument is probably the most obvious, the most cited, and the easiest to poke holes in of any of the arguments brought up so far. The EFF attorneys tried this in New York and were roundly ignored. By the way, something else to consider - this isn't a criminal prosecution taken by the government. It's a lawsuit. I'm not an attorney, but I suspect that First Amendment defenses are harder to do in civil court than in criminal court, since the Bill of Rights only really applies to actions taken by the government. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:44:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09016 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:44:39 -0500 Received: from hotmail.com (f14.law8.hotmail.com [216.33.241.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA09012 for ; Mon, 13 Mar 2000 13:44:35 -0500 Received: (qmail 9417 invoked by uid 0); 13 Mar 2000 19:57:21 -0000 Message-ID: <20000313195721.9416.qmail@hotmail.com> Received: from 208.41.124.50 by www.hotmail.com with HTTP; Mon, 13 Mar 2000 11:57:20 PST X-Originating-IP: [208.41.124.50] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 19:57:20 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This sounds like it's going down the "DeCSS as another player" road.. I don't know yet exactly what DeCSS does, whether it can be actually used as a DVD player, but it's going to be an uphill battle to argue that because 1) DeCSS is for Windows, not Linux, and therefore you can't defend it by saying that you're allowed to view on any platform, and 2) DeCSS doesn't come with hardware, it's just software, and this means to get the DVD to a place where DeCSS could access to it, you'd probably have to have a licensed player to begin with. DeCSS' purpose as another player looks less and less likely. At any rate, showing CSS restricts fair uses of legally gotten works is not going to happen through saying that DeCSS is a valid use of the DVD. Probably specific fair uses of the DVD must be shown to be restricted (perhaps CSS does not allow any DVD to be usefully copied for archival purposes) and then DeCSS can be shown to allow these uses. That would show that, through shortsightedness on the part of the access control manufacturer (Xing) and user (the MPAA), DeCSS can be used in non-infringing ways. DeCSS is source code that was compiled under DOS and uses a DLL to run under windows. DeCSS is also compiled under Linux to decrypt DVD's for the LiViD program that plays DVD's in Linux. I have heard that the DVD-CCS people say that there is a licensed key for a player that operates in Linux. If this is so, what is the name of that program and where is the open source, since Linux is open source. This is one question that should be asked. Another question to ask is if one has a DVD-ROM drive for a computer and a DVD, then one should be able to play the DVD, correct? The consumer players do just that. You have a DVD player and a DVD and the DVD can be played. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:46:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09191 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:46:15 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA09135 for ; Mon, 13 Mar 2000 13:45:55 -0500 Received: (qmail 12926 invoked by uid 502); 13 Mar 2000 20:01:20 -0000 Date: Mon, 13 Mar 2000 15:01:20 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000313150120.H16657@linuxpower.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Steve Stearns on Mon, Mar 13, 2000 at 12:49:18PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 12:49:18PM -0600, Steve Stearns wrote: > > > > I think this is a basic problem with any argument based on the wording on > > the package. That wording is under complete control of the studio that > > releases the DVD, and if it controls the extent to which fair use is > > allowed, then the copyright holder can restrict or eliminate fair use at > > will. > > This is something congress is going to need to figure out. Is fair use > something that should be force upon intellectual property holders even if > they can find a way to prevent it without use of copyright? I think so, > but it isn't clearly stated. Not to nitpick, but Congress has already done it's figuring out. This is something the judicial branch is going to have to figure out; Congress passes the laws and the courts try to make them play nice with other laws and society. That's why this case is so important - it's the first time that the decision already made by Congress, the DMCA, is being tried and judged by the judicial branch. AFAIK, fair use didn't become statutory until 1976; until then, it was a legal device created and used by the courts to judge copyright issues. Rob Warren greslin@linuxpower.org www.iag.net/~aleris s From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:52:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10355 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:52:30 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA10351 for ; Mon, 13 Mar 2000 13:52:28 -0500 Received: (qmail 23651 invoked by uid 500); 14 Mar 2000 13:41:46 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 13:41:46 -0000 Date: Tue, 14 Mar 2000 05:41:46 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <20000313140037.E16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > > DeCSS is not a program. It hasn't been compiled to binary form yet. It > > is in source code form. > > The binary package being distributed around the Net sure isn't. It's a > single .EXE file and two .DLL's. You have *seen* the program, haven't > you? > > Which do you honestly think the DVD folks care about more - source code that > a few techies know how to compile and use, or an executable Windows package > that *anyone* can install and use in seconds? First off the preliminary injunction was directed on the SOURCE CODE. I can understand taking down the binary form. SOURCE CODE, that's a bit of a stretch, don't you think? > > > > We have to understand the stage of development of device. Here's the > > sequence: > > > > First you got the "source code", then you use a compiler to compile into a > > "program", and then you burn the program into a "device". > > > > Here's the process: > > source code --> program --> device > > > > Before you have anything, you gotta have ideas and speech. > > Kent, do us all a favor. Go back and read the archives of the list. > This was run to ground, and then six feet underground, in the first few > days that this list was operational. *Please* don't go over old material > as though you just came up with the idea. It wastes bandwidth and > everyone's time. Umm we are talking about SOURCE CODE. > > > > DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected > > under the First Amendment. > > *Sigh*. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:52:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10510 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:52:55 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA10507 for ; Mon, 13 Mar 2000 13:52:53 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA32004 for ; Mon, 13 Mar 2000 13:09:07 -0600 Date: Mon, 13 Mar 2000 13:09:07 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313145008.G16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Except for the fact that what's being argued about isn't necessarily the > source code, but the executable. Read the New York transcript; while source > code isn't explicitly being left out, it's fairly clear that it's the object > code that people are concerned about. The argument used in New York was > that the ability of object code to communicate idea is limited, and therefore > irrelevant in terms of free speech. The distinction between object code and source code seems pretty irrelevant when dealing with a technology that is open source. I can download the object code. I can also download the source and compile it. Just because I compiled it, is it no longer expression? I tend not to think so, but IANAL :) > The "DeCSS = Free Speech" argument is probably the most obvious, the most > cited, and the easiest to poke holes in of any of the arguments brought up > so far. The EFF attorneys tried this in New York and were roundly ignored. I totally agree with you on this. This judge doesn't seem the type to buy the first amendment protection line. It's been clearly demonstrated that first amendment protection has its limits (shouting slander in a crowded fire, or what have you :). I suspect if they went in and tried that argument, the judge would laugh them out of court. > By the way, something else to consider - this isn't a criminal prosecution > taken by the government. It's a lawsuit. I'm not an attorney, but I > suspect that First Amendment defenses are harder to do in civil court than > in criminal court, since the Bill of Rights only really applies to actions > taken by the government. Well, if the law they are suing under is a violation of first amendment protections, then that defense would work regardless of whether it is civil or criminal court. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:54:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11358 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:54:54 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA11354 for ; Mon, 13 Mar 2000 13:54:51 -0500 Received: (qmail 23678 invoked by uid 500); 14 Mar 2000 13:44:04 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 13:44:04 -0000 Date: Tue, 14 Mar 2000 05:44:04 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <200003131854.KAA17657@ns1.filetron.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000, Rares Marian wrote: > Russell Miller wrote: > >On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > >> > >> Before you have anything, you gotta have ideas and speech. > >> > >> DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected > >> under the First Amendment. > >> > >> Kent Nguyen > > > >Can you back up ANYTHING of what you're saying legally, using citations, > >case law, etc.? > > DeCSS has been compiled and has been tested with varying results. Otherwise we wouldn't have those screenshots, now would we? The fact is it is a program because the binary is also called DeCSS. > > And on 2600 you can bet binaries were available. Most of their ilk don't compile much. Remembered DeCSS is source code format the judge had a preliminary injunction against. What you got to say about this? You have to make a clear distinction between ideas and implmentation. > > >If you can't, then don't bother. Platitudes are never going to help. > > > >--Russell > > > >-- > >Russell miller - rmiller@duskglow.com - russell@know-where.com > >----------------------------------------------------------------------- > >The following sites are my own and do not necessarily represent > >the views of any of my clients. > > > >http://www.duskglow.com > >http://www.singlegeek.com > >http://www.whathaveyoudone.org > > > > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 13:55:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11586 for dvd-discuss-outgoing; Mon, 13 Mar 2000 13:55:48 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA11582 for ; Mon, 13 Mar 2000 13:55:47 -0500 Received: (qmail 23688 invoked by uid 500); 14 Mar 2000 13:45:05 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 13:45:05 -0000 Date: Tue, 14 Mar 2000 05:45:05 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000, Steve Stearns wrote: > > Kent, of course there are arguments why DeCSS is illegal. They're based on > > 1201, which states that access control circumvention is illegal, and also > > that trafficking in access control circumvention tech is illegal. You don't > > need an act of circumvention for there to be trafficking; it just needs to > > BE access control circumvention tech. Unless you have arguments stating a) > > why DeCSS is source code and not, say, a program, and b) why, as source > > code, DeCSS is not access control circumvention tech, then your statements > > won't address the issue. > > Essentially, the right of free expression offsets the law about control > circumvention technology. Recently there was a ruling which permitted a > professor to post source code for encryption technology on-line. This is > forbidden by laws passed by congrees, but was overriden by the free > expression protections of the first amendment. The same theory may apply > here. THANK YOU STEVE! > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:01:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12719 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:01:58 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA12716 for ; Mon, 13 Mar 2000 14:01:56 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA32358 for ; Mon, 13 Mar 2000 13:18:07 -0600 Date: Mon, 13 Mar 2000 13:18:07 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] ACCESS as USE In-Reply-To: <20000313195721.9416.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > This sounds like it's going down the "DeCSS as another player" road.. I > don't know yet exactly what DeCSS does, whether it can be actually used as a > DVD player, but it's going to be an uphill battle to argue that because 1) > DeCSS is for Windows, not Linux, and therefore you can't defend it by saying > that you're allowed to view on any platform, and 2) DeCSS doesn't come with > hardware, it's just software, and this means to get the DVD to a place where > DeCSS could access to it, you'd probably have to have a licensed player to > begin with. DeCSS' purpose as another player looks less and less likely. No, DeCSS isn't another player, but rather, just a part of what is needed to play your DVD's. If you want to play a DVD on your computer you need a number of things to make it work. You need a drive, you need a video card, you need the proper software for it. In the linux community, if you have a video card that is missing a linux driver, you write your own. Writing DeCSS is not conceptually different than writing a driver. As for the "yeah but it ran on windows" issue, this was done because the file formats for the DVD video were not available on Linux yet. That makes good sense considering that without DeCSS there was no way to play it so why hurry along the support for the format along. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:07:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13717 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:07:04 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA13714 for ; Mon, 13 Mar 2000 14:07:01 -0500 Received: (qmail 23843 invoked by uid 500); 13 Mar 2000 20:25:57 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 20:25:57 -0000 Date: Mon, 13 Mar 2000 12:25:57 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <38CD4537.9F931EB8@cdpage.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000, Dana Parker wrote: > Kent Nguyen wrote: > > > > Kent, your intentions may be the best, but you are not helping. > > PLEASE adjust your date, it may not be bothering you but it is extremely > annoying to anyone you send mail to. Okie I finally found my root password to change the clock. Thanks :) > > And PLEASE read the archives. I'm on something new. Been searching the net for cases that allow published of source code which violates the laws. > > Otherwise, I think you can count on being filtered rather than read. I'll calm. Just got excited about DeCSS being source code and the court order a preliminary injunction on it. Read: http://news.cnet.com/news/0-1005-200-342175.html?owv Thanks! Kent > > > -- > Dana J. Parker > Consultant > http://www.cdpage.com > Contributing editor/standards columnist > Emedia magazine > http://www.emediapro.net > DVD PRO Conference Chair > http://www.dvdpro.net > I support the Campaign for Audiovisual Free Expression > http://www.eff.org/cafe > > mailto:danapark@ix.netcom.com > > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:13:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15215 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:13:47 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA15210 for ; Mon, 13 Mar 2000 14:13:45 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA11318 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 12:24:27 -0800 Date: Mon, 13 Mar 2000 12:24:26 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000313122426.R13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000313195721.9416.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000313195721.9416.qmail@hotmail.com>; from crazed376@hotmail.com on Mon, Mar 13, 2000 at 07:57:20PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Ramos writes: > DeCSS is source code that was compiled under DOS and uses a DLL to run under > windows. DeCSS is also compiled under Linux to decrypt DVD's for the LiViD > program that plays DVD's in Linux. Um, no, not really. I still need to find time to try to trace css-auth back to information first publicized with the publication of DeCSS -- but DeCSS isn't used in LiViD anywhere. The LiViD people are fairly emphatic about this. If you don't believe me, just ask a LiViD developer "Does LiViD use DeCSS to decrypt DVDs?". > I have heard that the DVD-CCS people say > that there is a licensed key for a player that operates in Linux. There is at least one; I've heard rumors of two. > If this > is so, what is the name of that program and where is the open source, since > Linux is open source. ... from /usr/src/linux/COPYING: NOTE! This copyright does *not* cover user programs that use kernel services by normal system calls - this is merely considered normal use of the kernel, and does *not* fall under the heading of "derived work". Also note that the GPL below is copyrighted by the Free Software Foundation, but the instance of code that it refers to (the Linux kernel) is copyrighted by me and others who actually wrote it. Linus Torvalds > This is one question that should be asked. More concretely, people who argue that "there is no Linux player" should be more specific and say "there is no open source player which works on Linux", and go on to clarify that "we have an ideological or practical commitment which forbids us either to use proprietary software at all, or to accept it contentedly as a permanent solution". Why aren't people doing this? Because it's difficult to explain ("we use a non-mainstream operating system" is finally comprehensible to the public, "we have a non-mainstream ideology about intellectual property or software development methodology" is not), and it doesn't sound as compelling in an interview. Unfortunately, the success of people promoting "Linux" has far outstripped the success of people promoting "open source" or "free software", with the result that only a small fraction of the people who have now heard of Linux have learned anything much about those concepts. Therefore, most people who even know what Linux is and why Windows software doesn't run on Linux still have no idea why many Linux users would be dissatisfied with a proprietary DVD player for Linux. Given that, the complaint that "there is no DVD player for Linux" is totally worthless and sure to backfire, as soon as a commercially-available proprietary player comes out. "We insist on doing things ourselves and not keeping secrets from the public" is a much stronger justification for working completely outside of (and against the wishes of) the DVD CCA and its licensing regime -- but it's much harder to explain in a sound bite. > Another > question to ask is if one has a DVD-ROM drive for a computer and a DVD, then > one should be able to play the DVD, correct? Sure, using either common sense or pre-DMCA legal standards. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:17:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17142 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:17:41 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA17139 for ; Mon, 13 Mar 2000 14:17:40 -0500 Received: (qmail 23872 invoked by uid 500); 13 Mar 2000 20:36:35 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 20:36:35 -0000 Date: Mon, 13 Mar 2000 12:36:35 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The Ruling on Daniel Bernstein vs. the Justice Department states: "First, it is not at all obvious that the government's view reflects a proper understanding of source code," the ruling stated. "Source code is not meant solely for the computer, but is rather written in a language intended also for human analysis and understanding." I think everyone now can be safe to post DeCSS source code on their website. Until further ruling, we shouldn't put the binary form. The calm Kent :) On Mon, 13 Mar 2000, Steve Stearns wrote: > > Kent, of course there are arguments why DeCSS is illegal. They're based on > > 1201, which states that access control circumvention is illegal, and also > > that trafficking in access control circumvention tech is illegal. You don't > > need an act of circumvention for there to be trafficking; it just needs to > > BE access control circumvention tech. Unless you have arguments stating a) > > why DeCSS is source code and not, say, a program, and b) why, as source > > code, DeCSS is not access control circumvention tech, then your statements > > won't address the issue. > > Essentially, the right of free expression offsets the law about control > circumvention technology. Recently there was a ruling which permitted a > professor to post source code for encryption technology on-line. This is > forbidden by laws passed by congrees, but was overriden by the free > expression protections of the first amendment. The same theory may apply > here. > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:19:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17685 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:19:49 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA17681 for ; Mon, 13 Mar 2000 14:19:47 -0500 Received: (qmail 13125 invoked by uid 502); 13 Mar 2000 20:35:16 -0000 Date: Mon, 13 Mar 2000 15:35:16 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000313153516.I16657@linuxpower.org> References: <20000313195721.9416.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000313195721.9416.qmail@hotmail.com>; from Richard Ramos on Mon, Mar 13, 2000 at 07:57:20PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 07:57:20PM +0000, Richard Ramos wrote: > > This sounds like it's going down the "DeCSS as another player" road.. I > don't know yet exactly what DeCSS does, whether it can be actually used as a > DVD player, but it's going to be an uphill battle to argue that because 1) > DeCSS is for Windows, not Linux, and therefore you can't defend it by saying > that you're allowed to view on any platform, and 2) DeCSS doesn't come with > hardware, it's just software, and this means to get the DVD to a place where > DeCSS could access to it, you'd probably have to have a licensed player to > begin with. DeCSS' purpose as another player looks less and less likely. What DeCSS does is not in dispute. It is actually very well known. Read the FAQ; in the current 3/6/2000 release it is Question 1.1.1. No, it cannot be used as a DVD player, because it *isn't* a DVD player. > DeCSS is source code that was compiled under DOS and uses a DLL to run under > windows. DeCSS is also compiled under Linux to decrypt DVD's for the LiViD > program that plays DVD's in Linux. As far as we can tell, this is incorrect. DeCSS is purely a Windows application, not a DOS or Linux program. The source code - after quite a bit of preaching from the LiViD crew - was given to Derek Fawcus of the LiViD team, who studied the code and wrote a better descrambling routine. That routine, not DeCSS, because part of later versions of DeCSS. DeCSS and the LiViD player are not the same thing. Only DeCSS is being disputed right now in the 1201 cases. > I have heard that the DVD-CCS people say > that there is a licensed key for a player that operates in Linux. If this > is so, what is the name of that program and where is the open source, since > Linux is open source. I believe the key in question belongs to Sigma Designs, and no, it's not open source. I hate to pop your balloon like this, but just because Linux is open source doesn't mean that software for Linux is all open source as well. A good example is Applix Office. A pretty good office package; I've used it for about a year and a half. Fully commercial, closed source office package for Linux. I also believe - though I may be wrong - that the Sigma license was granted after DeCSS was released last October. If that's the case, it doesn't matter if there's a Linux key *now*. What matters is if there was one *then*. > This is one question that should be asked. Another > question to ask is if one has a DVD-ROM drive for a computer and a DVD, then > one should be able to play the DVD, correct? The consumer players do just > that. You have a DVD player and a DVD and the DVD can be played. Except for the piddling little catch that there's a law in place, put there by an act of Congress, that says it ain't that simple. I know. Details, details. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:27:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18974 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:27:18 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA18971 for ; Mon, 13 Mar 2000 14:27:16 -0500 Received: (qmail 13161 invoked by uid 502); 13 Mar 2000 20:42:44 -0000 Date: Mon, 13 Mar 2000 15:42:44 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313154244.J16657@linuxpower.org> References: <20000313140037.E16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Tue, Mar 14, 2000 at 05:41:46AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 05:41:46AM -0800, Kent Nguyen wrote: > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > > > DeCSS is not a program. It hasn't been compiled to binary form yet. It > > > is in source code form. > > > > The binary package being distributed around the Net sure isn't. It's a > > single .EXE file and two .DLL's. You have *seen* the program, haven't > > you? > > > > Which do you honestly think the DVD folks care about more - source code that > > a few techies know how to compile and use, or an executable Windows package > > that *anyone* can install and use in seconds? > > First off the preliminary injunction was directed on the SOURCE CODE. I > can understand taking down the binary form. SOURCE CODE, that's a bit of > a stretch, don't you think? First off, there were *two* preliminary injunctions, not one. Which one are you talking about? If you're discussing the California suit (the DVDCCA one), then that's a trade secret case; it actually applies to *everything* regarding dissemination of materials related to CSS. If you're talking about the New York injunction, then it's debatable. If the 2600 guy went ahead and posted the source code on his site, he'd probably get his back broken by the court for contempt. But if you read the transcript (you *have* read it, haven't you?) of the New York hearing, you will see that they are much more concerned about executable code than source. If you wish to quote from the transcript, decisions or any of the filed papers showing that source code is being explicitly targeted - as compared to the executable program itself - please do. If not, please quit making up history. > > > We have to understand the stage of development of device. Here's the > > > sequence: > > > > > > First you got the "source code", then you use a compiler to compile into a > > > "program", and then you burn the program into a "device". > > > > > > Here's the process: > > > source code --> program --> device > > > > > > Before you have anything, you gotta have ideas and speech. > > > > Kent, do us all a favor. Go back and read the archives of the list. > > This was run to ground, and then six feet underground, in the first few > > days that this list was operational. *Please* don't go over old material > > as though you just came up with the idea. It wastes bandwidth and > > everyone's time. > > Umm we are talking about SOURCE CODE. And I'm talking about you wasting our time with an argument that has already been covered. If you're seriously interested in helping out here, read the archives and understand what has already been said. If all you want is to hear yourself talk, go somewhere else and quit wasting bandwidth. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:32:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20011 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:32:43 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20008 for ; Mon, 13 Mar 2000 14:32:41 -0500 Received: (qmail 13195 invoked by uid 502); 13 Mar 2000 20:48:10 -0000 Date: Mon, 13 Mar 2000 15:48:10 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313154810.K16657@linuxpower.org> References: <38CD4537.9F931EB8@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Mon, Mar 13, 2000 at 12:25:57PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 12:25:57PM -0800, Kent Nguyen wrote: > On Mon, 13 Mar 2000, Dana Parker wrote: > > > Kent Nguyen wrote: > > > > > > > > Kent, your intentions may be the best, but you are not helping. > > > > PLEASE adjust your date, it may not be bothering you but it is extremely > > annoying to anyone you send mail to. > Okie I finally found my root password to change the clock. Thanks :) Thank God. > > > > > And PLEASE read the archives. > I'm on something new. Been searching the net for cases that allow > published of source code which violates the laws. Unfortunately it isn't new. If you read the archives you would know this. > > Otherwise, I think you can count on being filtered rather than read. > I'll calm. Just got excited about DeCSS being source code and the court > order a preliminary injunction on it. > > Read: > http://news.cnet.com/news/0-1005-200-342175.html?owv Unfortunately this news reference has nothing to do with DeCSS, much less saying anything about the source code being targeted. This reference is regarding last year's Bernstein crypto ruling. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:36:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20607 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:36:20 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20604 for ; Mon, 13 Mar 2000 14:36:17 -0500 Received: (qmail 13215 invoked by uid 502); 13 Mar 2000 20:51:46 -0000 Date: Mon, 13 Mar 2000 15:51:46 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000313155146.L16657@linuxpower.org> References: <20000313195721.9416.qmail@hotmail.com> <20000313153516.I16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000313153516.I16657@linuxpower.org>; from greslin@linuxpower.org on Mon, Mar 13, 2000 at 03:35:16PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 03:35:16PM -0500, greslin@linuxpower.org wrote: > On Mon, Mar 13, 2000 at 07:57:20PM +0000, Richard Ramos wrote: > > > > DeCSS is source code that was compiled under DOS and uses a DLL to run under > > windows. DeCSS is also compiled under Linux to decrypt DVD's for the LiViD > > program that plays DVD's in Linux. > > As far as we can tell, this is incorrect. DeCSS is purely a Windows application, > not a DOS or Linux program. The source code - after quite a bit of preaching > from the LiViD crew - was given to Derek Fawcus of the LiViD team, who studied > the code and wrote a better descrambling routine. That routine, not DeCSS, > because part of later versions of DeCSS. This last sentence should read "That routine, not DeCSS, is part of the LiViD player; it was later appropriated and made part of later versions of DeCSS." Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:38:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20978 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:38:38 -0500 Received: from mail1.teleport.com (mail1.teleport.com [192.108.254.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20971 for ; Mon, 13 Mar 2000 14:38:37 -0500 Received: (qmail 29231 invoked from network); 13 Mar 2000 20:51:50 -0000 Received: from i48-25-32.pdx.du.teleport.com (HELO ?216.26.8.32?) (216.26.8.32) by mail1.teleport.com with SMTP; 13 Mar 2000 20:51:50 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <000701bf8d1b$df4f1ac0$c87945ce@bugbug.WinNATDomain> References: <5A8391CA2D9ED311AFAA080009D982B10B1996@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 13 Mar 2000 12:51:31 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: RE: [dvd-discuss] ACCESS as USE Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:42 AM -0800 3/13/2000, sparky wrote: >The problem is that viewing and access are probably two different things. As >Paul Fenimore pointed out (in the 2nd? post to this string, which I >started), access as a use would more or less be a new interpretation of what >a use is; furthermore, Wendy Seltzer pointed out that the copyright >authority Nimmer says that access is like entering a house, and use is like >what you do once you're in the house. Based on this it seems unlikely that >we will get anywhere by arguing that access is a form of use. No. But one can make the argument that: 1) Access is a prerequisite for use. (Nimmer's analogy backs this position.) 2) Blocking access renders fair use moot, since you can't make a fair use of it if you can't access it. 3) Therefore, circumventing access blocks for the purpose of making a fair use ought to inherit the same legal protection as fair use itself does. >This sounds like it's going down the "DeCSS as another player" road.. I >don't know yet exactly what DeCSS does, whether it can be actually used as a >DVD player, but it's going to be an uphill battle to argue that because 1) >DeCSS is for Windows, not Linux, and therefore you can't defend it by saying >that you're allowed to view on any platform, and 2) DeCSS doesn't come with >hardware, it's just software, and this means to get the DVD to a place where >DeCSS could access to it, you'd probably have to have a licensed player to >begin with. DeCSS' purpose as another player looks less and less likely. Have you not gone over this already? DeCSS is not a player itself, but it was a necessary step in developing a player. (The player is going to have to decrypt the CSS somehow.) It had to be developed for Windows because at the time, Linux couldn't access the filesystem used on DVDs. The point here being that disallowing DeCSS would also disallow a player that must incorporate DeCSS or equivalent software. As for the hardware, commonly DVD drives come with an authorized player for...Windows. Someone who's bought such a drive with such a player does have an "authorized player"; it just won't run on any OS but Windows. Hence the problem. -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:42:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25721 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:42:29 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25718 for ; Mon, 13 Mar 2000 14:42:23 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id OAA22839 for ; Mon, 13 Mar 2000 14:55:37 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Mon, 13 Mar 2000 14:54:39 -0600 Message-ID: <000101bf8d2e$596a1640$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent wrote: > DeCSS is not a program. It hasn't been compiled to binary form yet. It > is in source code form. > > We have to understand the stage of development of device. Here's the > sequence: > > First you got the "source code", then you use a compiler to compile into a > "program", and then you burn the program into a "device". Does this look like source code? It looks like a program to me. http://www.tiac.net/users/rongus/decss2.gif > > Here's the process: > source code --> program --> device > > Before you have anything, you gotta have ideas and speech. If you're trying to say that because DeCSS was once source code, it is protected under free speech, that will not fly. Ideas are protected, but once you implement the idea, it may not be protected. I can talk about murder all I want, but I cannot legally murder someone. sparky > > DeCSS is SOURCE CODE. SOURCE CODE is speech. Which means it is protected > under the First Amendment. > > Kent Nguyen > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:46:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26134 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:46:32 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA26131 for ; Mon, 13 Mar 2000 14:46:31 -0500 Received: (qmail 13306 invoked by uid 502); 13 Mar 2000 21:01:56 -0000 Date: Mon, 13 Mar 2000 16:01:56 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000313160156.M16657@linuxpower.org> References: <20000313195721.9416.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Steve Stearns on Mon, Mar 13, 2000 at 01:18:07PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 01:18:07PM -0600, Steve Stearns wrote: First off, Steve, please indicate who you are replying to. You're obviously replying to someone else's post than your own; it makes it easier on the rest of us if you please refrain from talking to yourself. > > This sounds like it's going down the "DeCSS as another player" road.. I > > don't know yet exactly what DeCSS does, whether it can be actually used as a > > DVD player, but it's going to be an uphill battle to argue that because 1) > > DeCSS is for Windows, not Linux, and therefore you can't defend it by saying > > that you're allowed to view on any platform, and 2) DeCSS doesn't come with > > hardware, it's just software, and this means to get the DVD to a place where > > DeCSS could access to it, you'd probably have to have a licensed player to > > begin with. DeCSS' purpose as another player looks less and less likely. > > No, DeCSS isn't another player, but rather, just a part of what is needed > to play your DVD's. If you want to play a DVD on your computer you need a > number of things to make it work. You need a drive, you need a video > card, you need the proper software for it. In the linux community, if you > have a video card that is missing a linux driver, you write your > own. Writing DeCSS is not conceptually different than writing a driver. Except that DeCSS isn't a driver, not even conceptually. > As for the "yeah but it ran on windows" issue, this was done because the > file formats for the DVD video were not available on Linux yet. That > makes good sense considering that without DeCSS there was no way to play > it so why hurry along the support for the format along. The "it's a Windows app because Linux couldn't use Micro-UDF at the time" was a story that came out with the Johansen interviews, when heat started being applied to the people involved. It sounds good to the press, but so far there doesn't seem to be any evidence that this is in fact true. In short, it's speculation and wishful thinking and would never stand up in court. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:49:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26741 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:49:44 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26737 for ; Mon, 13 Mar 2000 14:49:42 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA23249 for ; Mon, 13 Mar 2000 15:02:52 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] First Amendment. Date: Mon, 13 Mar 2000 15:01:54 -0600 Message-ID: <000201bf8d2f$5caa30a0$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve wrote: > > Kent, of course there are arguments why DeCSS is illegal. > They're based on > > 1201, which states that access control circumvention is > illegal, and also > > that trafficking in access control circumvention tech is > illegal. You don't > > need an act of circumvention for there to be trafficking; it > just needs to > > BE access control circumvention tech. Unless you have arguments > stating a) > > why DeCSS is source code and not, say, a program, and b) why, as source > > code, DeCSS is not access control circumvention tech, then your > statements > > won't address the issue. > > Essentially, the right of free expression offsets the law about control > circumvention technology. Recently there was a ruling which permitted a > professor to post source code for encryption technology on-line. This is > forbidden by laws passed by congrees, but was overriden by the free > expression protections of the first amendment. The same theory may apply > here. There is another matter besides what Rob brings up, which is that it may not really be applicable. I'm thinking of relevancy here. One, the professor whose name I've already forgotten was doing research which was furthering encryption science (I believe). He was not cracking anything. Not only does DeCSS crack in an allegedly illegal way, it does not further encryption research. At least, I'd have to hear some good arguments about why encryption science is furthered by cracking 40-bit encryption schemes. (Didn't Scheier say that this was the scheme to use to keep your kid sister from reading your journal?) sparky > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:55:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27461 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:55:10 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27458 for ; Mon, 13 Mar 2000 14:55:08 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA23525 for ; Mon, 13 Mar 2000 15:08:19 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 15:07:21 -0600 Message-ID: <000401bf8d30$1f53de80$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000313195721.9416.qmail@hotmail.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Ramos wrote: > Another > question to ask is if one has a DVD-ROM drive for a computer and > a DVD, then > one should be able to play the DVD, correct? The consumer > players do just > that. You have a DVD player and a DVD and the DVD can be played. Dana, can you play a DVD on a CD-ROM? > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 14:57:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA28514 for dvd-discuss-outgoing; Mon, 13 Mar 2000 14:57:34 -0500 Received: from dial162.cybermesa.com (dial162.cybermesa.com [209.12.75.162]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA28511 for ; Mon, 13 Mar 2000 14:57:29 -0500 Received: (from paul@localhost) by dial162.cybermesa.com (8.8.7/8.8.7) id OAA02610 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 14:14:09 -0700 Date: Mon, 13 Mar 2000 14:14:08 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000313141407.A2480@localhost> References: <20000311114003.A659@localhost> <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain>; from sparky@suba.com on Sat, Mar 11, 2000 at 06:25:15PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 11, 2000 at 06:25:15PM -0600, sparky wrote: > Paul wrote: > > On Fri, Mar 10, 2000 at 05:16:59PM -0500, Joshua Daub wrote: > > > > > > > > > Mr. Ian Hay wrote: > > > >Here are some non-dead-end ideas: > > > > > > > >(1) This circumventing device does not fit into 1201(a)(2) > > because >it is > > > >primarily used for "authorized" circumvention as required by > > >the Act. If > > > >DeCSS is used to view a legally purchased DVD, the >purchase price is > > > >consideration for the "authorization". See my post >of > > Saturday March 4 > > > >with the subject "Authorization: Another way of >seeing it" for a more > > > >elaborate explanation. I personally think >this is the best > > of the bunch, > > > >despite the absence of substantial comment. > > > > > > This is dead. Here are the reasons: > > > > > > 1. Nowhere does the DMCA state anything about "authorized > > circumvention." > > > > Yes, but why does DeCSS get classified as circumvention? I don't see > > how "with authority" can attach to a player device. If "authority" never > > attaches to a player, how can § 1201(a)(2) distinguish circumventing > > from non-circumventing _players_? > > It seems to me your position rests on the statements: > "if sale then (authority to view) = (authority to circumvent access > control)" The "if sale" here is addressing the issue at a level I haven't resolved to my own satisfaction. My post was trying to show that authority cannot attach to the player, but must attach to the tangible copy, and perhaps to a person. You are asking _when_ that authority is conveyed. It will either be at publication or at first sale. In what follows "it" and "authority" mean "authority to private performance." If it conveys at publication, accessing a scrambled cable TV signal might not be a violation of § 1201. If it conveys at publication, it cannot attach to a person because publication is only a function of what the copyright holder does. From 17 U.S.C. § 101: ''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute ^^^^^^^^^^^^^^^^^^^^^^ copies or phonorecords to a group of persons for purposes of ^^^^^^^^^^^^^^^^^^^^^ further distribution, public performance, or public display, constitutes publication. A public performance or display of a ^^^^^^^^^^^^^^^^^^^^^^^ work does not of itself constitute publication. If authority conveys at publication, then accessing a copy that infringes under § 106(1) would not be an offense. I expect the court to reject arguments that authority conveys at publication, unless it can be shown that it must convey at that time to protect the right to read. If it conveys at first sale, it can either attach to a person or to the media. If it attaches to a person then accessing a stolen DVD will be an offense under § 1201(a)(1). If authority attaches to the media, then accessing the illegally acquired DVD is not a violation of § 1201(a)(1). I don't know enough about conveyance (have I got the right word here?) to say if attaching authority under § 1201 to a person would lead to a situation where some transfers of ownership would fail to convey the right to access. If so, then there is a big stick called Griswold that we can use to attack the "attaches to a person" theory. The equality in your "if then" statement is more or less a result of the Griswold v. Connecticut (1965) decision. The Supreme Court held that for purposes of the First Amendment, speaking and listening; writing, reading; recording and performance; must be considered as insuperable pairs if the First is to have any real-world meaning. Because access sits squarely between recording and performance, Griswold seems to say it should be considered as equivalent to the right to speak. The MPAA have already argued during the hearing in Kaplan's court that access is more than a wedge between speaking and listening. I think this why they didn't completely stop mentioning the "fact" that § 1201(a) (and presumably (b)) protect an exclusive right to control reproduction under § 106(1). (Quotes are intended to be derogatory.) I think this is hog-wash, and have been turning this one over in my mind for days. I think I'm close to having a viable theory. I'll refrain from posting here to stay on-topic and give me a little more time to think about it. If authority doesn't convey, but is at the pleasure of the copyright holder, then the right to read is toast. Griswold says that can't happen. > and > "DeCSS =another DVD player by virtue of the functionality it shares with any > licensed DCCA DVD player". More precisely, the access functionality shared between programs. Other functionality might be regulated under the exclusive rights in § 106. Interestingly enough § 1201(k) directly addresses protecting the exclusive right under § 106(1). Which leads to another point --- there are at least seven activities that a copyright holder can authorize under Title 17. One each for § 106(1,2,3,4,5,6) and § 1201. The MPAA seems to be claiming that § 1201 is two rights: access and trafficking. This last point is really just another angle on the delegation and U.S. v. Paramount (1948) arguments. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:10:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31028 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:10:00 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA31025 for ; Mon, 13 Mar 2000 15:09:59 -0500 Received: (qmail 13433 invoked by uid 502); 13 Mar 2000 21:25:28 -0000 Date: Mon, 13 Mar 2000 16:25:28 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Goodness Message-ID: <20000313162528.P16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Team - I just wanted to let you all know that there is no 3/13 release of the Frequently Asked Questions list. It's been restructured, new information is being sorted and it's being factually audited; I've decided to hold off and release the new cut on 3/20. You can read the OpenLaw DVD Forum FAQ list at: www.iag.net/~aleris/dvdfaq.html Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:12:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31433 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:12:41 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31429 for ; Mon, 13 Mar 2000 15:12:39 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA24326 for ; Mon, 13 Mar 2000 15:25:52 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 15:24:54 -0600 Message-ID: <000501bf8d32$92e314e0$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve wrote: > > > We've got a problem there, though, because such an argument > implies that a > > studio can change the terms of fair use simply by modifying the > boilerplate > > on their DVD package. If the phrase were changed to ""The > program contained > > in this LaserDisc is authorized for private home use on an > authorized DVD > > player only.", then we'd be right back where we started. > > Not necessarily. See here's the thing. If access is granted by the act > of purchasing and they changed the license agreements on existing DVD's to > bypass this loophole it wouldn't matter. If we continue in the vein of thought that access != use, then they could not restrict access as a matter of copyright restriction at all. No matter what they put on anything anywhere. If access is paracopyright, as Congress said, then copyright holders' appeal to their limited monopoly will get them nowhere very quickly. So I think we're agreeing here. If DeCSS is okay to use on some > DVD's with CSS on them, then the DMCA doesn't hold water in court because > you aren't cirumventing access to the newly licensed DVD's, just the old > ones. Granted the same technology works for both, but suddenly DeCSS has > application as something other than a device to bypass access control. I'm not sure I'm following you there. > > > I think this is a basic problem with any argument based on the > wording on > > the package. That wording is under complete control of the studio that > > releases the DVD, and if it controls the extent to which fair use is > > allowed, then the copyright holder can restrict or eliminate fair use at > > will. > > This is something congress is going to need to figure out. Is fair use > something that should be force upon intellectual property holders even if > they can find a way to prevent it without use of copyright? I think so, > but it isn't clearly stated. In fact I think 1201 itself states that 1201 will not change the current state of fair use. I'm not sure what this may specifically mean (anyone got a Nimmer of an idea out there?), but if it means it will not overturn fair use, which seems a safe assumption, then the answer is not that we are forcing fair use on the copyright holders, but that it already is in place and 1201 may not remove that. > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:12:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31452 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:12:51 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31445 for ; Mon, 13 Mar 2000 15:12:48 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA24349 for ; Mon, 13 Mar 2000 15:25:58 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Mon, 13 Mar 2000 15:25:00 -0600 Message-ID: <000701bf8d32$96a5e940$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent wrote: > > And on 2600 you can bet binaries were available. Most of their > ilk don't compile much. > Remembered DeCSS is source code format the judge had a preliminary > injunction against. What you got to say about this? You have to make a > clear distinction between ideas and implmentation. The shoe is on *your* foot, Kent, not Russell's. What do *you* have to say about the fact that DeCSS *is* a binary and, bad preliminary injunction or not, it is *this* issue around which our arguments need to revolve? sparkane From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:12:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31453 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:12:52 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31447 for ; Mon, 13 Mar 2000 15:12:49 -0500 Received: from bugbug (max01-22.suba.com [206.69.121.214]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA24333 for ; Mon, 13 Mar 2000 15:25:55 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Mon, 13 Mar 2000 15:24:56 -0600 Message-ID: <000601bf8d32$947d8b00$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent wrote: > > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > > > DeCSS is not a program. It hasn't been compiled to binary > form yet. It > > > is in source code form. > > > > The binary package being distributed around the Net sure isn't. It's a > > single .EXE file and two .DLL's. You have *seen* the program, haven't > > you? > > > > Which do you honestly think the DVD folks care about more - > source code that > > a few techies know how to compile and use, or an executable > Windows package > > that *anyone* can install and use in seconds? > First off the preliminary injunction was directed on the SOURCE CODE. I > can understand taking down the binary form. SOURCE CODE, that's a bit of > a stretch, don't you think? If you're talking about there being an unjust preliminary injunction, then I'm sure, if your interpretation of the preliminary injection is correct, that everyone will agree with you. Be that as it may, your arguments do not address winning the case, but overturning the preliminary injunction. Later we can attack 1201 for not being clear enough about that. For now, address the issue of DeCSS as a binary that circumvents the MPAA's access control on DVDs. Which, if you go to the screenshot, you can clearly see it is. sparky > > > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:18:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00454 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:18:50 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA00449 for ; Mon, 13 Mar 2000 15:18:48 -0500 Received: (qmail 13471 invoked by uid 502); 13 Mar 2000 21:33:52 -0000 Date: Mon, 13 Mar 2000 16:33:52 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313163352.Q16657@linuxpower.org> References: <20000313145008.G16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Steve Stearns on Mon, Mar 13, 2000 at 01:09:07PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 01:09:07PM -0600, Steve Stearns wrote: > > Except for the fact that what's being argued about isn't necessarily the > > source code, but the executable. Read the New York transcript; while source > > code isn't explicitly being left out, it's fairly clear that it's the object > > code that people are concerned about. The argument used in New York was > > that the ability of object code to communicate idea is limited, and therefore > > irrelevant in terms of free speech. > > The distinction between object code and source code seems pretty > irrelevant when dealing with a technology that is open source. I can > download the object code. I can also download the source and compile > it. Just because I compiled it, is it no longer expression? I tend not > to think so, but IANAL :) To be totally frank, it doesn't mean a damned thing whether it seems irrelevant to you. What matters it how relevant object code vs. source code is to the courts, and so far (AFAIK) the courts have not giving open source software it's own special little cubbyhole in law. The courts have typically seen a very distinct difference between object code and source code. > > The "DeCSS = Free Speech" argument is probably the most obvious, the most > > cited, and the easiest to poke holes in of any of the arguments brought up > > so far. The EFF attorneys tried this in New York and were roundly ignored. > > I totally agree with you on this. This judge doesn't seem the type to buy > the first amendment protection line. It's been clearly demonstrated that > first amendment protection has its limits (shouting slander in a crowded > fire, or what have you :). I suspect if they went in and tried that > argument, the judge would laugh them out of court. No, I doubt he would laugh. He'd probably get pissed off and render an immediate verdict against. Oh, yeah, that's right. That's what Kaplan *did*. > > By the way, something else to consider - this isn't a criminal prosecution > > taken by the government. It's a lawsuit. I'm not an attorney, but I > > suspect that First Amendment defenses are harder to do in civil court than > > in criminal court, since the Bill of Rights only really applies to actions > > taken by the government. > > Well, if the law they are suing under is a violation of first amendment > protections, then that defense would work regardless of whether it is > civil or criminal court. Only if you're challenging the law, in which case you need to realize that you're challenging an act of Congress. That means it has to go to the Supreme Court; a local functionary like Kaplan doesn't have the authority to overturn an act of Congress. Otherwise, you end up going into court saying "Yes, we broke the law, but the law is a violation of the First Amendment!" and the court replies, "So? Take it up with the Supreme Court and Congress. Court finds against the defendent." And the hammer comes down - bang. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:21:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00787 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:21:00 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA00784 for ; Mon, 13 Mar 2000 15:20:59 -0500 Received: (qmail 24115 invoked by uid 500); 13 Mar 2000 21:39:57 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 21:39:57 -0000 Date: Mon, 13 Mar 2000 13:39:57 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <20000313154244.J16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > On Tue, Mar 14, 2000 at 05:41:46AM -0800, Kent Nguyen wrote: > > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > > > On Tue, Mar 14, 2000 at 04:15:15AM -0800, Kent Nguyen wrote: > > > > DeCSS is not a program. It hasn't been compiled to binary form yet. It > > > > is in source code form. > > > > > > The binary package being distributed around the Net sure isn't. It's a > > > single .EXE file and two .DLL's. You have *seen* the program, haven't > > > you? > > > > > > Which do you honestly think the DVD folks care about more - source code that > > > a few techies know how to compile and use, or an executable Windows package > > > that *anyone* can install and use in seconds? > > > > First off the preliminary injunction was directed on the SOURCE CODE. I > > can understand taking down the binary form. SOURCE CODE, that's a bit of > > a stretch, don't you think? > > First off, there were *two* preliminary injunctions, not one. Which one are > you talking about? > > If you're discussing the California suit (the DVDCCA one), then that's a trade > secret case; it actually applies to *everything* regarding dissemination of > materials related to CSS. > > If you're talking about the New York injunction, then it's debatable. If the > 2600 guy went ahead and posted the source code on his site, he'd probably get > his back broken by the court for contempt. But if you read the transcript > (you *have* read it, haven't you?) of the New York hearing, you will see that > they are much more concerned about executable code than source. > > If you wish to quote from the transcript, decisions or any of the filed papers > showing that source code is being explicitly targeted - as compared to the > executable program itself - please do. If not, please quit making up history. Didn't you just contradict yourself? " If you're talking about the New York injunction, then it's debatable. If the 2600 guy went ahead and posted the source code on his site, he'd probably get his back broken by the court for contempt. But if you read the transcript (you *have* read it, haven't you?) of the New York hearing, you will see that they are much more concerned about executable code than source." *ahem* > > > > > > We have to understand the stage of development of device. Here's the > > > > sequence: > > > > > > > > First you got the "source code", then you use a compiler to compile into a > > > > "program", and then you burn the program into a "device". > > > > > > > > Here's the process: > > > > source code --> program --> device > > > > > > > > Before you have anything, you gotta have ideas and speech. > > > > > > Kent, do us all a favor. Go back and read the archives of the list. > > > This was run to ground, and then six feet underground, in the first few > > > days that this list was operational. *Please* don't go over old material > > > as though you just came up with the idea. It wastes bandwidth and > > > everyone's time. > > > > Umm we are talking about SOURCE CODE. > > And I'm talking about you wasting our time with an argument that has already > been covered. If you're seriously interested in helping out here, read the > archives and understand what has already been said. If all you want is to > hear yourself talk, go somewhere else and quit wasting bandwidth. I think your FAQ is a bunch of cut and paste. It has lack of resourceful ideas. "If all you want is to hear yourself talk, go somewhere else and quit wasting bandwidth." Fine! I'll unsubscribe. But remember your strongest argument is the First Amendment. I'm done! Good luck. Btw, how do I unsubscribe from this list? Thank you, Kent Nguyen > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:23:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01297 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:23:45 -0500 Received: from localhost.localdomain (root@bur-jud-118-039.rh.uchicago.edu [128.135.118.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01294 for ; Mon, 13 Mar 2000 15:23:44 -0500 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id PAA22055 for ; Mon, 13 Mar 2000 15:37:02 -0600 Date: Mon, 13 Mar 2000 15:37:01 -0600 (CST) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Goodness In-Reply-To: <20000313162528.P16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: MULTIPART/MIXED; BOUNDARY="8323328-934543044-952983421=:22048" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This message is in MIME format. The first part should be readable text, while the remaining parts are likely unreadable without MIME-aware tools. Send mail to mime@docserver.cac.washington.edu for more info. --8323328-934543044-952983421=:22048 Content-Type: TEXT/PLAIN; charset=US-ASCII just to follow up on this, attached is a revised version on my answer to "what are patents?" incorporating suggestions from paul. Hope this is useful. sam th sytobinh@uchicago.edu http://bur-jud-118-039.rh.uchicago.edu --8323328-934543044-952983421=:22048 Content-Type: TEXT/PLAIN; charset=US-ASCII; name=whatispatent Content-Transfer-Encoding: BASE64 Content-ID: Content-Description: Content-Disposition: attachment; filename=whatispatent V2hhdCBpcyBhIHBhdGVudD8NCg0KRnJvbSB0aGUgVVMgUGF0ZW50IGFuZCBU cmFkZW1hcmsgT2ZmaWNlIChodHRwOi8vd3d3LnVzcHRvLmdvdikgYnJvY2h1 cmUgR2VuZXJhbCBJbmZvcm1hdGlvbiBDb25jZXJuaW5nIFBhdGVudHMgKGh0 dHA6Ly93d3cudXNwdG8uZ292L3dlYi9vZmZpY2VzL3BhYy9kb2MvZ2VuZXJh bC93aGF0aXMuaHRtKQ0KDQo8Y2l0ZT4NCkEgcGF0ZW50IGZvciBhbiBpbnZl bnRpb24gaXMgdGhlIGdyYW50IG9mIGEgcHJvcGVydHkgcmlnaHQgdG8gdGhl IGludmVudG9yLCBpc3N1ZWQgYnkgdGhlIFBhdGVudCBhbmQgVHJhZGVtYXJr IE9mZmljZS4gVGhlIHRlcm0gb2YgYSBuZXcgcGF0ZW50IGlzIDIwIHllYXJz IGZyb20gdGhlIGRhdGUgb24gd2hpY2ggdGhlIGFwcGxpY2F0aW9uIGZvciB0 aGUgcGF0ZW50IHdhcyBmaWxlZCBpbiB0aGUgVW5pdGVkIFN0YXRlcyBvciwg aW4gc3BlY2lhbCBjYXNlcywgZnJvbSB0aGUgZGF0ZSBhbiBlYXJsaWVyIHJl bGF0ZWQgYXBwbGljYXRpb24gd2FzIGZpbGVkLCBzdWJqZWN0IHRvIHRoZSBw YXltZW50IG9mIG1haW50ZW5hbmNlIGZlZXMuIFVTIHBhdGVudCBncmFudHMg YXJlIGVmZmVjdGl2ZSBvbmx5IHdpdGhpbiB0aGUgVVMsIFVTIHRlcnJpdG9y aWVzLCBhbmQgVVMgcG9zc2Vzc2lvbnMuIA0KDQpUaGUgcmlnaHQgY29uZmVy cmVkIGJ5IHRoZSBwYXRlbnQgZ3JhbnQgaXMsIGluIHRoZSBsYW5ndWFnZSBv ZiB0aGUgc3RhdHV0ZSBhbmQgb2YgdGhlIGdyYW50IGl0c2VsZiwgInRoZSBy aWdodCB0byBleGNsdWRlIG90aGVycyBmcm9tIG1ha2luZywgdXNpbmcsIG9m ZmVyaW5nIGZvciBzYWxlLCBvciBzZWxsaW5nIiB0aGUgaW52ZW50aW9uIGlu IHRoZSBVbml0ZWQgU3RhdGVzIG9yICJpbXBvcnRpbmciIHRoZSBpbnZlbnRp b24gaW50byB0aGUgVW5pdGVkIFN0YXRlcy4gV2hhdCBpcyBncmFudGVkIGlz IG5vdCB0aGUgcmlnaHQgdG8gbWFrZSwgdXNlLCBvZmZlciBmb3Igc2FsZSwg c2VsbCBvciBpbXBvcnQsIGJ1dCB0aGUgcmlnaHQgdG8gZXhjbHVkZSBvdGhl cnMgZnJvbSBtYWtpbmcsIHVzaW5nLCBvZmZlcmluZyBmb3Igc2FsZSwgc2Vs bGluZyBvciBpbXBvcnRpbmcgdGhlIGludmVudGlvbi4NCjwvY2l0ZT4NCg0K UGF0ZW50cyBkaWZmZXIgc2lnbmlmaWNhbnRseSBmcm9tIGJvdGggY29weXJp Z2h0cyBhbmQgdHJhZGUgc2VjcmV0cy4gIFBhdGVudHMgZm9jdXMgb24gdGhl IGNvbmNlcHQgdGhhdCBoYXMgYmVlbiBkZXZlbG9wZWQsIHdoaWNoIGlzIChv ciBzaG91bGQgYmUpIGEgbmV3LCBub24tdHJpdmlhbCBpZGVhLiAgQ29weXJp Z2h0cyBmb2N1cyBvbiB0aGUgZm9ybSBvZiB0aGUgZXhwcmVzc2lvbi4gIEEg Y29weXJpZ2h0IGRvZXMgbm90IGNvdmVyIHRoZSBpZGVhcyBleHByZXNzZWQs IGJ1dCBob3cgdGhleSBhcmUgZXhwcmVzc2VkLiAgUGF0ZW50cyBwcmV2ZW50 IHNvbWVvbmUgZWxzZSBmcm9tIGltcGxlbWVudGluZyB0aGUgc2FtZSBjb25j ZXB0LCBldmVuIGlmIGluIGRpZmZlcmVudCBmb3JtLiAgDQoNClRyYWRlIHNl Y3JldHMgYXJlIGFsc28gbXVjaCBkaWZmZXJlbnQgdGhhbiBwYXRlbnRzLiAg Rmlyc3QsIHBhdGVudHMgYXJlIG5lY2Vzc2FyaWx5IHB1Ymxpc2hlZCBhcyBh IHBhcnQgb2YgdGhlIHN1Ym1pc3Npb24gcHJvY2Vzcywgd2hpbGUgdHJhZGUg c2VjcmV0cyBieSBkZWZpbml0aW9uIGFyZSBub3QuICBJbiBmYWN0LCB0aGUg aG9sZGVyIG9mIGEgdHJhZGUgc2VjcmV0IG11c3QgbWFrZSBhbiBlZmZvcnQg dG8ga2VlcCB0aGUgdHJhZGUgc2VjcmV0IHByaXZhdGUgaW4gb3JkZXIgZm9y IHRoZSB0cmFkZSBzZWNyZXQgdG8gYmUgdmFsaWQgYW5kIGVuZm9yY2VhYmxl LiAgTm90ZSB0aGF0IHRoaXMgcHJvdGVjdGlvbiBkb2VzIG5vdCBoYXZlIHRv IGJlIHNpZ25pZmljYW50IG9yIGRpZmZpY3VsdCB0byBjaXJjdW12ZW50LCBm b3IgZXhhbXBsZSwgYSBjbGljay13cmFwIGxpY2Vuc2UgZml0cyB0aGlzIHJl cXVpcmVtZW50LiAgU2Vjb25kLCB0aGUgaWRlYSBvciBjb25jZXB0IGJlaGlu ZCBhIHRyYWRlIHNlY3JldCBpcyBub3QgbmVjZXNzYXJpbHkgcHJvdGVjdGVk IGJ5IHRoZSBmb3JjZSBvZiBsYXcuICBJZiBzb21lb25lIGhhZCB0aGUgaW5j bGluYXRpb24sIHRoZXkgY291bGQgaW1wbGVtZW50IGFuIGFsdGVybmF0aXZl IDQwLWJpdCBlbmNyeXB0aW9uIHN5c3RlbSBmb3IgRFZEcyB3aXRob3V0IGlu ZnJpbmdpbmcgb24gdGhlIGNsYWltZWQgdHJhZGUgc2VjcmV0cyBvZiB0aGUg RFZEIENDQS4gIA0KDQpBbiBpbnZlbnRpb24gY2FuIGJlIHByb3RlY3RlZCBi eSBib3RoIHRyYWRlIHNlY3JldHMgYW5kIGNvcHlyaWdodHMgKGZvciBhIHBh cnRpY3VsYXIgaW1wbGVtZW50YXRpb24pLCBvciBieSBwYXRlbnRzIChvbiB0 aGUgaWRlYSkgYW5kIGNvcHlyaWdodHMgKG9uIHRoZSBpbXBsZW1lbnRhdGlv bikuICBJbnRlZ3JhdGluZyBwYXRlbnRzIGFuZCB0cmFkZSBzZWNyZXRzIGlz IGxpa2VseSB0byBiZSBtdWNoIGhhcmRlci4gIA== --8323328-934543044-952983421=:22048-- From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:28:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01894 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:28:08 -0500 Received: from dial211.cybermesa.com (dial211.cybermesa.com [209.12.75.211]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01891 for ; Mon, 13 Mar 2000 15:28:05 -0500 Received: (from paul@localhost) by dial211.cybermesa.com (8.8.7/8.8.7) id OAA02907 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 14:44:43 -0700 Date: Mon, 13 Mar 2000 14:44:42 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313144442.A2747@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from kent@newyen.com on Mon, Mar 13, 2000 at 12:36:35PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 12:36:35PM -0800, Kent Nguyen wrote: > The Ruling on > Daniel Bernstein vs. the Justice Department > > states: > "First, it is not at all obvious that the government's view reflects a > proper understanding of source code," the ruling stated. "Source code is > not meant solely for the computer, but is rather written in a language > intended also for human analysis and understanding." > > I think everyone now can be safe to post DeCSS source code on their > website. Until further ruling, we shouldn't put the binary form. I am not a lawyer. This is not legal advice. There is a little thing in law called the collateral bar rule. It says that if you violate an injunction, your ass is grass. To a very good approximation, it doesn't matter how stupid or egregious an injunction is, if you violate it, you _will_ be fried by the court. To rephrase, the collateral bar rule says injunctions are sacred. Any person who is bound by one of the court injunctions against DeCSS and who violates it, will be in _deep shit_ with court. I can't find a more pleasant way to put it. I am not a lawyer. This is not legal advice. By the sound of it, neither is Kent Nguyen. Consult an attorney. If you want legal advice, consult an attorney. I am not an attorney. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01900 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:28:14 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01896 for ; Mon, 13 Mar 2000 15:28:12 -0500 Received: from bugbug (max01-17.suba.com [206.69.121.209]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA25115 for ; Mon, 13 Mar 2000 15:41:27 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 15:40:29 -0600 Message-ID: <000901bf8d34$c016d1c0$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000313153516.I16657@linuxpower.org> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin wrote: > On Mon, Mar 13, 2000 at 07:57:20PM +0000, Richard Ramos wrote: > > > > This sounds like it's going down the "DeCSS as another player" road.. I > > don't know yet exactly what DeCSS does, whether it can be > actually used as a > > DVD player, but it's going to be an uphill battle to argue that > because 1) > > DeCSS is for Windows, not Linux, and therefore you can't defend > it by saying > > that you're allowed to view on any platform, and 2) DeCSS > doesn't come with > > hardware, it's just software, and this means to get the DVD to > a place where > > DeCSS could access to it, you'd probably have to have a > licensed player to > > begin with. DeCSS' purpose as another player looks less and less likely. > > What DeCSS does is not in dispute. It is actually very well known. Read > the FAQ; in the current 3/6/2000 release it is Question 1.1.1. > > No, it cannot be used as a DVD player, because it *isn't* a DVD player. Actually, Rob, that was me. Richard's quoting apparatus don't work too good. I guess I'd better go read the FAQ agin. :( a humble sparky From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:28:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01904 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:28:16 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01901 for ; Mon, 13 Mar 2000 15:28:14 -0500 Received: from bugbug (max01-17.suba.com [206.69.121.209]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id PAA25122 for ; Mon, 13 Mar 2000 15:41:29 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] First Amendment. Date: Mon, 13 Mar 2000 15:40:31 -0600 Message-ID: <000a01bf8d34$c1774c20$f07945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve wrote: > > The distinction between object code and source code seems pretty > irrelevant when dealing with a technology that is open source. I can > download the object code. I can also download the source and compile > it. Just because I compiled it, is it no longer expression? I tend not > to think so, but IANAL :) Probably we would run afoul of the idea vs. implementation distinction there. It may be expression, but it is also *more* than expression, it is an implementation. sparky > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:43:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05757 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:43:08 -0500 Received: from dial237.cybermesa.com (dial237.cybermesa.com [209.12.75.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05754 for ; Mon, 13 Mar 2000 15:43:05 -0500 Received: (from paul@localhost) by dial237.cybermesa.com (8.8.7/8.8.7) id OAA03101 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 14:59:50 -0700 Date: Mon, 13 Mar 2000 14:59:49 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313145948.A3013@localhost> References: <20000313144442.A2747@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000313144442.A2747@localhost>; from fenimore@roadrunner.com on Mon, Mar 13, 2000 at 02:44:42PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 02:44:42PM -0700, Paul Fenimore wrote: > I am not a lawyer. This is not legal advice. > > There is a little thing in law called the collateral bar rule. > > It says that if you violate an injunction, your ass is grass. That should be "court order", not "injunction." Like I said, I'm not a lawyer. If you want legal advice, consult a lawyer. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:44:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05868 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:44:35 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA05865 for ; Mon, 13 Mar 2000 15:44:33 -0500 Received: (qmail 13600 invoked by uid 502); 13 Mar 2000 22:00:02 -0000 Date: Mon, 13 Mar 2000 17:00:02 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313170002.R16657@linuxpower.org> References: <20000313154244.J16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Mon, Mar 13, 2000 at 01:39:57PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 01:39:57PM -0800, Kent Nguyen wrote: > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > On Tue, Mar 14, 2000 at 05:41:46AM -0800, Kent Nguyen wrote: > > > > > > First off the preliminary injunction was directed on the SOURCE CODE. I > > > can understand taking down the binary form. SOURCE CODE, that's a bit of > > > a stretch, don't you think? > > > > First off, there were *two* preliminary injunctions, not one. Which one are > > you talking about? > > > > If you're discussing the California suit (the DVDCCA one), then that's a trade > > secret case; it actually applies to *everything* regarding dissemination of > > materials related to CSS. > > > > If you're talking about the New York injunction, then it's debatable. If the > > 2600 guy went ahead and posted the source code on his site, he'd probably get > > his back broken by the court for contempt. But if you read the transcript > > (you *have* read it, haven't you?) of the New York hearing, you will see that > > they are much more concerned about executable code than source. > > > > If you wish to quote from the transcript, decisions or any of the filed papers > > showing that source code is being explicitly targeted - as compared to the > > executable program itself - please do. If not, please quit making up history. > > Didn't you just contradict yourself? No, I didn't. And you didn't answer my question. > > " If you're talking about the New York injunction, then it's > debatable. If the 2600 guy went ahead and posted the source code on his > site, he'd probably get his back broken by the court for contempt. But if > you read the transcript (you *have* read it, haven't you?) of the New York > hearing, you will see that they are much more concerned about executable > code than source." > > *ahem* What I said was that if the 2600 guys posted the source code and then said "it's not the object code, so there!" then the court would probably find them in contempt, and this would be a completely fair assessment. Contempt of court is what happens when you intentionally show disrespect to the court. There is a whopping *big* difference between this, and saying that the plaintiff's are explicitly targeting source code. > > > > days that this list was operational. *Please* don't go over old material > > > > as though you just came up with the idea. It wastes bandwidth and > > > > everyone's time. > > > > > > Umm we are talking about SOURCE CODE. > > > > And I'm talking about you wasting our time with an argument that has already > > been covered. If you're seriously interested in helping out here, read the > > archives and understand what has already been said. If all you want is to > > hear yourself talk, go somewhere else and quit wasting bandwidth. > I think your FAQ is a bunch of cut and paste. It has lack of resourceful > ideas. The purpose of the FAQ is not to generate ideas; that is the purpose of the list. The purpose of the FAQ is to provide as factual information as possible in order to make sure those "resourceful ideas" actually have some sort of foundation, rather than being blown smoke. > > "If all you want is to hear yourself talk, go somewhere else and quit > wasting bandwidth." > Fine! I'll unsubscribe. I'm glad we both agree. > > But remember your strongest argument is the First Amendment. I'm done! Promise? > > Good luck. > > Btw, how do I unsubscribe from this list? Typically you would send an unsubscribe notice to the majordomo address. I assume in this case you would send a message with "unsubscribe dvd-discuss" in the message body, and that the address is "majordomo@eon.law.harvard.edu". Wendy, is this correct? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 15:49:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06347 for dvd-discuss-outgoing; Mon, 13 Mar 2000 15:49:02 -0500 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA06344 for ; Mon, 13 Mar 2000 15:49:01 -0500 Received: from jst (1Cust84.tnt1.lax1.da.uu.net [63.24.139.84]) by snipe.prod.itd.earthlink.net (8.9.3/8.9.3) with SMTP id OAA07477 for ; Mon, 13 Mar 2000 14:02:16 -0800 (PST) Message-Id: <4.1.20000313135853.0093ce90@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Mon, 13 Mar 2000 14:01:35 -0800 To: From: "James S. Tyre" Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: <000201bf8d2f$5caa30a0$f07945ce@bugbug.WinNATDomain> References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 03:01 PM 03/13/2000 -0600, sparky wrote: >Not only does >DeCSS crack in an allegedly illegal way, it does not further encryption >research. At least, I'd have to hear some good arguments about why >encryption science is furthered by cracking 40-bit encryption schemes. >(Didn't Scheier say that this was the scheme to use to keep your kid sister >from reading your journal?) [Quoting myself quoting Schneier] Applied Cryptography (2nd edition) by Bruce Schneier is a standard reference. Mr. Schneier writes: "The simple-XOR algorithm is really an embarrassment; its nothing more than a Vigenere polyalphabetic cipher. Its here only because of its prevalence in commercial software packages, at least those in the MS-DOS and Macintosh worlds." He continues, commenting on a slightly more sophisticated variant than simple Ox94: "There's no real security here. This kind of encryption is trivial to break, even without computers. It will only take a few seconds with a computer." He concludes the discussion as follows: "An XOR might keep your kid sister from reading your files, but it won't stop a cryptanalyst for more than a few minutes." -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:00:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09197 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:00:48 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09194 for ; Mon, 13 Mar 2000 16:00:47 -0500 Received: from cdpage.com (ddsl91.dnvr.uswest.net [209.180.251.91]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id OAA15854 for ; Mon, 13 Mar 2000 14:14:18 -0800 (PST) Message-ID: <38CD67DF.7B312E55@cdpage.com> Date: Mon, 13 Mar 2000 15:12:48 -0700 From: Dana Parker X-Mailer: Mozilla 4.61 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE References: <000401bf8d30$1f53de80$f07945ce@bugbug.WinNATDomain> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky wrote: > Richard Ramos wrote: > > Another > > question to ask is if one has a DVD-ROM drive for a computer and > > a DVD, then > > one should be able to play the DVD, correct? The consumer > > players do just > > that. You have a DVD player and a DVD and the DVD can be played. > > Dana, can you play a DVD on a CD-ROM? > No, you can't. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:11:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11980 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:11:33 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA11965 for ; Mon, 13 Mar 2000 16:11:31 -0500 Received: (qmail 13768 invoked by uid 502); 13 Mar 2000 22:27:01 -0000 Date: Mon, 13 Mar 2000 17:27:01 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313172701.T16657@linuxpower.org> References: <000201bf8d2f$5caa30a0$f07945ce@bugbug.WinNATDomain> <4.1.20000313135853.0093ce90@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <4.1.20000313135853.0093ce90@cyberpass.net>; from James S. Tyre on Mon, Mar 13, 2000 at 02:01:35PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 02:01:35PM -0800, James S. Tyre wrote: > At 03:01 PM 03/13/2000 -0600, sparky wrote: > > >Not only does > >DeCSS crack in an allegedly illegal way, it does not further encryption > >research. At least, I'd have to hear some good arguments about why > >encryption science is furthered by cracking 40-bit encryption schemes. > >(Didn't Scheier say that this was the scheme to use to keep your kid sister > >from reading your journal?) > > [Quoting myself quoting Schneier] > > Applied Cryptography (2nd edition) by Bruce Schneier is a standard > reference. Mr. Schneier writes: > > "The simple-XOR algorithm is really an embarrassment; its nothing more > than a Vigenere polyalphabetic cipher. Its here only because of its > prevalence in commercial software packages, at least those in the MS-DOS > and Macintosh worlds." > > He continues, commenting on a slightly more sophisticated variant than > simple Ox94: > > "There's no real security here. This kind of encryption is trivial to > break, even without computers. It will only take a few seconds with a > computer." > > He concludes the discussion as follows: > > "An XOR might keep your kid sister from reading your files, but it won't > stop a cryptanalyst for more than a few minutes." It should be mentioned here that the effectiveness of an XOR lies in how it is used and the size and variety of the key. Schneier is addressing a "simple XOR", i.e. one that *only* does a simple XOR and has a minimal key. This is the cyber equivalent of a simple substitution cypher, and is easily broken. An XOR, however, can be very effectively used if a large enough key and a careful algorithm is used along with it. In this case, XOR is nothing but a mangling method for the data. Schneier is an excellent book on the subject. I would also recommend "The Codebreakers" by David Kahn; while Schneier is a very good text on the technical aspect of cryptography, Kahn details the history of cryptography better than any book I've seen to date. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:19:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14729 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:19:52 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA14726 for ; Mon, 13 Mar 2000 16:19:50 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id OAA11538 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 14:30:32 -0800 Date: Mon, 13 Mar 2000 14:30:32 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313143032.Y13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000313163352.Q16657@linuxpower.org>; from greslin@linuxpower.org on Mon, Mar 13, 2000 at 04:33:52PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > > > By the way, something else to consider - this isn't a criminal prosecution > > > taken by the government. It's a lawsuit. I'm not an attorney, but I > > > suspect that First Amendment defenses are harder to do in civil court than > > > in criminal court, since the Bill of Rights only really applies to actions > > > taken by the government. > > > > Well, if the law they are suing under is a violation of first amendment > > protections, then that defense would work regardless of whether it is > > civil or criminal court. > > Only if you're challenging the law, in which case you need to realize that > you're challenging an act of Congress. That means it has to go to the > Supreme Court; a local functionary like Kaplan doesn't have the authority > to overturn an act of Congress. > > Otherwise, you end up going into court saying "Yes, we broke the law, but the > law is a violation of the First Amendment!" and the court replies, "So? Take > it up with the Supreme Court and Congress. Court finds against the defendent." > > And the hammer comes down - bang. I don't think this is correct. Think of a facial challenge to a Federal law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). That challenge is filed in Federal court, but in a lower court (US District Court for a Randomly Chosen District), not the Supreme Court. That court has the authority to find for the plaintiff (challenging the law), at least citing a previous precedent of a higher court to suggest that the law is invalid under the application of existing caselaw theories. The Supreme Court doesn't have any special position with regard to determinations of unconstitutionality, except that, if it does decide a question, its interpretation will prevail, unless people ignore it. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:29:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17051 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:29:32 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA17048 for ; Mon, 13 Mar 2000 16:29:31 -0500 Received: (qmail 24317 invoked by uid 500); 13 Mar 2000 22:48:29 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 22:48:29 -0000 Date: Mon, 13 Mar 2000 14:48:29 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313144442.A2747@localhost> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was hoping someone would respond to this. On Mon, 13 Mar 2000, Paul Fenimore wrote: > On Mon, Mar 13, 2000 at 12:36:35PM -0800, Kent Nguyen wrote: > > The Ruling on > > Daniel Bernstein vs. the Justice Department > > > > states: > > "First, it is not at all obvious that the government's view reflects a > > proper understanding of source code," the ruling stated. "Source code is > > not meant solely for the computer, but is rather written in a language > > intended also for human analysis and understanding." > > > > I think everyone now can be safe to post DeCSS source code on their > > website. Until further ruling, we shouldn't put the binary form. > > I am not a lawyer. This is not legal advice. "I am not a lawyer." Doesn't mean you can't represent one in court. There is equal representation in court you know. Ever fought a ticket? > > There is a little thing in law called the collateral bar rule. > > It says that if you violate an injunction, your ass is grass. "your ass is grass" hrmm never heard the law use that term :P > To a very good approximation, it doesn't matter how stupid or > egregious an injunction is, if you violate it, you _will_ be > fried by the court. Worst case, your website goes down, you get arrest and put a bail for $10K. That's not "grass", that's the violation to go against the court injunction. If you can afford the process take a chance. Com'n it's only money. When you win the case, try to countersuit for loss damages. I don't believe in an eye for an eye. I do believe in opportunity cost. If they waste your time, you should be compensated. > > To rephrase, the collateral bar rule says injunctions are sacred. > > Any person who is bound by one of the court injunctions against > DeCSS and who violates it, will be in _deep shit_ with court. > I can't find a more pleasant way to put it. "deep shit" is the term used by many who don't know exactly the consequence. It's what you call "fear". If I was afraid I wouldn't be in this discussion. Everyone here is discussing ways to go against the law: DMCA. :) > > I am not a lawyer. This is not legal advice. Another disclaimer. Try that as a signature, it'll help. :) > > By the sound of it, neither is Kent Nguyen. Consult an attorney. > > If you want legal advice, consult an attorney. I am not an attorney. Another disclaimer. :) > > > Paul Fenimore > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:43:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20202 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:43:39 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA20199 for ; Mon, 13 Mar 2000 16:43:37 -0500 Received: (qmail 13941 invoked by uid 502); 13 Mar 2000 22:59:07 -0000 Date: Mon, 13 Mar 2000 17:59:07 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313175907.W16657@linuxpower.org> References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000313143032.Y13379@cty-alum.org>; from Seth David Schoen on Mon, Mar 13, 2000 at 02:30:32PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 02:30:32PM -0800, Seth David Schoen wrote: > greslin@linuxpower.org writes: > > > > > By the way, something else to consider - this isn't a criminal prosecution > > > > taken by the government. It's a lawsuit. I'm not an attorney, but I > > > > suspect that First Amendment defenses are harder to do in civil court than > > > > in criminal court, since the Bill of Rights only really applies to actions > > > > taken by the government. > > > > > > Well, if the law they are suing under is a violation of first amendment > > > protections, then that defense would work regardless of whether it is > > > civil or criminal court. > > > > Only if you're challenging the law, in which case you need to realize that > > you're challenging an act of Congress. That means it has to go to the > > Supreme Court; a local functionary like Kaplan doesn't have the authority > > to overturn an act of Congress. > > > > Otherwise, you end up going into court saying "Yes, we broke the law, but the > > law is a violation of the First Amendment!" and the court replies, "So? Take > > it up with the Supreme Court and Congress. Court finds against the defendent." > > > > And the hammer comes down - bang. > > I don't think this is correct. Think of a facial challenge to a Federal > law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). > That challenge is filed in Federal court, but in a lower court (US District > Court for a Randomly Chosen District), not the Supreme Court. It was the Supreme Court that struck it down. AFAIK, only the Supreme Court has the power to go up against Congress; it's called checks and balances. The attorneys I've spoken to have agreed with this. http://www.epic.org/cda/ > That court has the authority to find for the plaintiff (challenging the > law), at least citing a previous precedent of a higher court to suggest > that the law is invalid under the application of existing caselaw theories. > > The Supreme Court doesn't have any special position with regard to > determinations of unconstitutionality, except that, if it does decide a > question, its interpretation will prevail, unless people ignore it. :-) Not according to the United States Constitution. It makes it fairly clear that the First Law of the United States is the Constitution; following that is a balance of three powers - Congress, the President and the Supreme Court. All other courts are inferior (the Constitution's word) to these three. Federal courts overturn acts of state legislatures, not acts of Congress. If a case gets appealed to the point that it is obvious that in order to settle it the constitutionality of a congressional act must be called into question, only the Supreme Court has the authority to make that call. If you doubt it, I challenge you to cite a single case where any court inferior to the Supreme Court overturned a congressional act or an executive order. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:43:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20299 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:43:52 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA20296 for ; Mon, 13 Mar 2000 16:43:51 -0500 Received: (qmail 24360 invoked by uid 500); 13 Mar 2000 23:02:50 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 23:02:50 -0000 Date: Mon, 13 Mar 2000 15:02:50 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: <000a01bf8d34$c1774c20$f07945ce@bugbug.WinNATDomain> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Implementation only if you refer to DeCSS as a program shown by your screenshot. DeCSS as source code is ideas. Shouting "fire" in a crowded area is circumstantial. Like if you go into an Asian supermarket and shout "fire". Like anyone will pay attention to you. The shouting of "fire" needs to have "implementation" capability to be justified. What may seem obvious may not be obvious. DeCSS source code is nothing but expression of ideas. DeCSS in binary format is implmentation. And my point isn't the implementation. Kent On Mon, 13 Mar 2000, sparky wrote: > Steve wrote: > > > > The distinction between object code and source code seems pretty > > irrelevant when dealing with a technology that is open source. I can > > download the object code. I can also download the source and compile > > it. Just because I compiled it, is it no longer expression? I tend not > > to think so, but IANAL :) > > Probably we would run afoul of the idea vs. implementation distinction > there. It may be expression, but it is also *more* than expression, it is an > implementation. > > sparky > > > > > ---Steve > > > > > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:55:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22469 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:55:08 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA22466 for ; Mon, 13 Mar 2000 16:55:07 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id RAA20989 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 17:08:23 -0600 Date: Mon, 13 Mar 2000 17:08:23 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Program vs. data Message-ID: <20000313170823.A20985@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hate to reopen a can of worms here, but: In previous discussions it has been asserted that DVD program content is contained in the encrypted VOB files alongside the MPEG data. Yet, everything I see on livid-dev is saying that the program content is stored in the unencrypted IFO (and backup/BUP) files. True, the VOB files contain timestamps and little flags saying "turn on macrovision" or "allow fast-forward", but all the information I can find is indicating that the really wild programming instructions are not stored in the VOB; the VOB is just mildly souped-up MPEG. FAQ question 3.3.2 also states this; I'd hate to see misleading information get repeated further. I'm not looking to rehash whether "DVD is a program" is a true or useful argument. But can anyone show that the program-like content is actually _in_ the encrypted VOB files? Eric From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 16:58:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23144 for dvd-discuss-outgoing; Mon, 13 Mar 2000 16:58:22 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA23141 for ; Mon, 13 Mar 2000 16:58:19 -0500 Received: (qmail 14048 invoked by uid 502); 13 Mar 2000 23:13:48 -0000 Date: Mon, 13 Mar 2000 18:13:48 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313181348.X16657@linuxpower.org> References: <20000313144442.A2747@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Mon, Mar 13, 2000 at 02:48:29PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 02:48:29PM -0800, Kent Nguyen wrote: > I was hoping someone would respond to this. (From Rob to Paul: I realize I should let you have this one, but I can't let this one stand.) > > On Mon, 13 Mar 2000, Paul Fenimore wrote: > > > On Mon, Mar 13, 2000 at 12:36:35PM -0800, Kent Nguyen wrote: > > > The Ruling on > > > Daniel Bernstein vs. the Justice Department > > > > > > states: > > > "First, it is not at all obvious that the government's view reflects a > > > proper understanding of source code," the ruling stated. "Source code is > > > not meant solely for the computer, but is rather written in a language > > > intended also for human analysis and understanding." > > > > > > I think everyone now can be safe to post DeCSS source code on their > > > website. Until further ruling, we shouldn't put the binary form. > > > > I am not a lawyer. This is not legal advice. > "I am not a lawyer." Doesn't mean you can't represent one in > court. There is equal representation in court you know. Ever fought a > ticket? Kent, what he's trying to do is avoid the issue of practicing law without a license, which is very illegal. If you had a legal clue (and from the looks of your website you don't) you would know this and realize that is what he is doing. Sure, you can represent yourself in court, AFAIK. But you can't represent someone else, and you can't set yourself up to give out legal advice if you're not a licensed and practicing attorney. > > There is a little thing in law called the collateral bar rule. > > > > It says that if you violate an injunction, your ass is grass. > "your ass is grass" hrmm never heard the law use that term :P They've got prettier words for it in court, but they amount to the same thing. If you violate a court order - which if you read the list you will see Paul later amended this to - the courts are empowered to do some really nasty things to you. Try it yourself if you doubt it. > > To a very good approximation, it doesn't matter how stupid or > > egregious an injunction is, if you violate it, you _will_ be > > fried by the court. > Worst case, your website goes down, you get arrest and put a bail for > $10K. That's not "grass", that's the violation to go against the court > injunction. If you can afford the process take a chance. Com'n it's only > money. When you win the case, try to countersuit for loss damages. I > don't believe in an eye for an eye. I do believe in opportunity cost. If > they waste your time, you should be compensated. Kent, Kent, Kent.. what you do think happens *after* you get arrested? You make it sound like it all ends when you pay bail. You *really* don't have the slightest clue, do you? > > To rephrase, the collateral bar rule says injunctions are sacred. > > > > Any person who is bound by one of the court injunctions against > > DeCSS and who violates it, will be in _deep shit_ with court. > > I can't find a more pleasant way to put it. > "deep shit" is the term used by many who don't know exactly the > consequence. It's what you call "fear". If I was afraid I wouldn't be in > this discussion. Everyone here is discussing ways to go against the > law: DMCA. :) No, we're not, not in the sense you describe here. What you're talking about is breaking the law. We're talking about overturning it. It's the difference between being a criminal and being a good citizen. How exactly do you manage in life being this disassociated from reality? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:04:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24216 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:04:36 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA24213 for ; Mon, 13 Mar 2000 17:04:35 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id PAA11005 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 15:27:51 -0800 Date: Mon, 13 Mar 2000 15:27:50 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313152750.B29348@duskglow.com> References: <20000313144442.A2747@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from kent@newyen.com on Mon, Mar 13, 2000 at 02:48:29PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 02:48:29PM -0800, Kent Nguyen wrote: > I was hoping someone would respond to this. > I can see why. > "I am not a lawyer." Doesn't mean you can't represent one in > court. There is equal representation in court you know. Ever fought a > ticket? > AFAIK, you can represent *yourself*. You may not represent others without a valid license. Nor may you profit from legal advice. > Worst case, your website goes down, you get arrest and put a bail for > $10K. That's not "grass", that's the violation to go against the court > injunction. If you can afford the process take a chance. Com'n it's only > money. When you win the case, try to countersuit for loss damages. I > don't believe in an eye for an eye. I do believe in opportunity cost. If > they waste your time, you should be compensated. > So you're advocating openly flaunting an injunction? Pardon me for getting blunt: WHAT DO YOU THINK WE STAND FOR HERE? here is a bunch of people trying to find and research arguments to help the lawyers to win our case, and all I've seen you do on this list is spout dubious legal theories you have not been able to back up and basically waste everyone's time responding to you, someone who obviously is not interested in anything but putting forth his views at the expense of truth and the effort that it takes to refute them. In plain words, you are wasting everyone's time, you obviously have no idea what this list stands for, and I'd recommend you going back and reading EVERY SINGLE POSTING to this list until you figure out that we are here to prove or disprove legal theories - LEGALLY. What you *feel* has no bearing unless you can prove it and so far you haven't proven a damned thing - heck, you haven't even made an attempt at it. > "deep shit" is the term used by many who don't know exactly the > consequence. It's what you call "fear". If I was afraid I wouldn't be in > this discussion. Everyone here is discussing ways to go against the > law: DMCA. :) > I'd say even knowing exactly the consequence is "deep shit". And even if we're not afraid, it is not pruydent to be tossed in jail over something like this when one can have much more effect working at it from the inside - by coincidence, right where we are. > Another disclaimer. Try that as a signature, it'll help. :) > So what? Disclaimers are good. Especially when one is needed so that they do not follow legal advice that may be bonehead without fair warning. --Russell > > > > > > Paul Fenimore > > > > -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:07:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24723 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:07:10 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA24719 for ; Mon, 13 Mar 2000 17:07:09 -0500 Received: (qmail 24380 invoked by uid 500); 13 Mar 2000 23:26:08 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 23:26:08 -0000 Date: Mon, 13 Mar 2000 15:26:08 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <20000313170002.R16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > On Mon, Mar 13, 2000 at 01:39:57PM -0800, Kent Nguyen wrote: > > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > > > On Tue, Mar 14, 2000 at 05:41:46AM -0800, Kent Nguyen wrote: > > > > > > > > First off the preliminary injunction was directed on the SOURCE CODE. I > > > > can understand taking down the binary form. SOURCE CODE, that's a bit of > > > > a stretch, don't you think? > > > > > > First off, there were *two* preliminary injunctions, not one. Which one are > > > you talking about? > > > > > > If you're discussing the California suit (the DVDCCA one), then that's a trade > > > secret case; it actually applies to *everything* regarding dissemination of > > > materials related to CSS. > > > > > > If you're talking about the New York injunction, then it's debatable. If the > > > 2600 guy went ahead and posted the source code on his site, he'd probably get > > > his back broken by the court for contempt. But if you read the transcript > > > (you *have* read it, haven't you?) of the New York hearing, you will see that > > > they are much more concerned about executable code than source. > > > > > > If you wish to quote from the transcript, decisions or any of the filed papers > > > showing that source code is being explicitly targeted - as compared to the > > > executable program itself - please do. If not, please quit making up history. > > > > Didn't you just contradict yourself? > > No, I didn't. And you didn't answer my question. Yes I did, you just didn't understand your question. > > > > > > " If you're talking about the New York injunction, then it's > > debatable. If the 2600 guy went ahead and posted the source code on his > > site, he'd probably get his back broken by the court for contempt. But if > > you read the transcript (you *have* read it, haven't you?) of the New York > > hearing, you will see that they are much more concerned about executable > > code than source." > > > > *ahem* > > What I said was that if the 2600 guys posted the source code and then said > "it's not the object code, so there!" then the court would probably find them > in contempt, and this would be a completely fair assessment. Contempt of > court is what happens when you intentionally show disrespect to the court. > > There is a whopping *big* difference between this, and saying that the > plaintiff's are explicitly targeting source code. > > > > > > > > days that this list was operational. *Please* don't go over old material > > > > > as though you just came up with the idea. It wastes bandwidth and > > > > > everyone's time. > > > > > > > > Umm we are talking about SOURCE CODE. > > > > > > And I'm talking about you wasting our time with an argument that has already > > > been covered. If you're seriously interested in helping out here, read the > > > archives and understand what has already been said. If all you want is to > > > hear yourself talk, go somewhere else and quit wasting bandwidth. > > I think your FAQ is a bunch of cut and paste. It has lack of resourceful > > ideas. > > The purpose of the FAQ is not to generate ideas; that is the purpose of the > list. The purpose of the FAQ is to provide as factual information as possible > in order to make sure those "resourceful ideas" actually have some sort of > foundation, rather than being blown smoke. "blown smoke" ... new term. What's it mean? The first amendment is strong enough foundation for you and your mom to stand on. Using the context of "blown smoke" you're using, don't "blown smoke" if you don't understand the difference between ideas and implementation or source code and program. > > > > > > "If all you want is to hear yourself talk, go somewhere else and quit > > wasting bandwidth." > > Fine! I'll unsubscribe. > > I'm glad we both agree. > > > > > But remember your strongest argument is the First Amendment. I'm done! > > Promise? Better than promise. Johansen debilerately criticize EFF for not understanding the First Amendment. Have you read his interview? Johansen sent me an email to thanking me for understanding that it's a First Amendment issue. By the way, he's only 16. > > > > > Good luck. > > > > Btw, how do I unsubscribe from this list? > > Typically you would send an unsubscribe notice to the majordomo address. > I assume in this case you would send a message with "unsubscribe dvd-discuss" > in the message body, and that the address is "majordomo@eon.law.harvard.edu". > > Wendy, is this correct? Wendy, ever try ezmlm. It's a lot better than majordomo. Second thought I don't want to unsubscribe. I think it's fun to try to poke some hole in Rob's logic. Perhaps we can have a better understanding why the First Amendment argument is stronger than the "fair use" argument. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:10:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25142 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:10:34 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA25139 for ; Mon, 13 Mar 2000 17:10:33 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id SAA29201 for ; Mon, 13 Mar 2000 18:23:51 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA10154; Mon, 13 Mar 2000 18:23:50 -0500 (EST) Date: Mon, 13 Mar 2000 18:23:50 -0500 (EST) Message-Id: <200003132323.SAA10154@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313175907.W16657@linuxpower.org> References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > On Mon, Mar 13, 2000 at 02:30:32PM -0800, Seth David Schoen wrote: > > I don't think this is correct. Think of a facial challenge to a Federal > > law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). > > That challenge is filed in Federal court, but in a lower court (US District > > Court for a Randomly Chosen District), not the Supreme Court. > > It was the Supreme Court that struck it down. AFAIK, only the Supreme Court > has the power to go up against Congress; it's called checks and balances. The > attorneys I've spoken to have agreed with this.... > > http://www.epic.org/cda/ > > If you doubt it, I challenge you to cite a single case where any court > inferior to the Supreme Court overturned a congressional act or an executive > order. Ummm... Rob, when I look at http://www.epic.org/cda, it says pretty directly: On June 12, 1996, a special three-judge court in Philadephia ruled that the Communications Decency Act is an unconstitutional abridgement of rights protected by the First and Fifth Amendments. The panel consisted of judges drawn from the U.S. District Court for the Eastern District of Pennsylvania. The ruling, in the form of an injunction which enjoined the government against enforcing the law, can be found by a link further down on the page, or by going directly to http://www2.epic.org/cda/cda_dc_opinion.html This district court ruling winds up by stating that "the CDA is unconstitutional on its face", and the injunction was granted for that reason. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:11:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25322 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:11:44 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA25314 for ; Mon, 13 Mar 2000 17:11:43 -0500 Received: (qmail 24402 invoked by uid 500); 13 Mar 2000 23:30:43 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 23:30:43 -0000 Date: Mon, 13 Mar 2000 15:30:43 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313172701.T16657@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > On Mon, Mar 13, 2000 at 02:01:35PM -0800, James S. Tyre wrote: > > At 03:01 PM 03/13/2000 -0600, sparky wrote: > > > > >Not only does > > >DeCSS crack in an allegedly illegal way, it does not further encryption > > >research. At least, I'd have to hear some good arguments about why > > >encryption science is furthered by cracking 40-bit encryption schemes. > > >(Didn't Scheier say that this was the scheme to use to keep your kid sister > > >from reading your journal?) > > > > [Quoting myself quoting Schneier] > > > > Applied Cryptography (2nd edition) by Bruce Schneier is a standard > > reference. Mr. Schneier writes: > > > > "The simple-XOR algorithm is really an embarrassment; its nothing more > > than a Vigenere polyalphabetic cipher. Its here only because of its > > prevalence in commercial software packages, at least those in the MS-DOS > > and Macintosh worlds." > > > > He continues, commenting on a slightly more sophisticated variant than > > simple Ox94: > > > > "There's no real security here. This kind of encryption is trivial to > > break, even without computers. It will only take a few seconds with a > > computer." > > > > He concludes the discussion as follows: > > > > "An XOR might keep your kid sister from reading your files, but it won't > > stop a cryptanalyst for more than a few minutes." > > > It should be mentioned here that the effectiveness of an XOR lies in how > it is used and the size and variety of the key. Schneier is addressing > a "simple XOR", i.e. one that *only* does a simple XOR and has a minimal > key. This is the cyber equivalent of a simple substitution cypher, and > is easily broken. > > An XOR, however, can be very effectively used if a large enough key and > a careful algorithm is used along with it. In this case, XOR is nothing > but a mangling method for the data. > > Schneier is an excellent book on the subject. I would also recommend > "The Codebreakers" by David Kahn; while Schneier is a very good text on the > technical aspect of cryptography, Kahn details the history of cryptography > better than any book I've seen to date. Above is label as off topic unless if you want more info on cryptography. :) > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:17:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27120 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:17:47 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA27117 for ; Mon, 13 Mar 2000 17:17:46 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA11625 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 15:28:25 -0800 Date: Mon, 13 Mar 2000 15:28:24 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313152824.Z13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000313175907.W16657@linuxpower.org>; from greslin@linuxpower.org on Mon, Mar 13, 2000 at 05:59:07PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > > > Otherwise, you end up going into court saying "Yes, we broke the law, but the > > > law is a violation of the First Amendment!" and the court replies, "So? Take > > > it up with the Supreme Court and Congress. Court finds against the defendent." > > > > > > And the hammer comes down - bang. > > > > I don't think this is correct. Think of a facial challenge to a Federal > > law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). > > That challenge is filed in Federal court, but in a lower court (US District > > Court for a Randomly Chosen District), not the Supreme Court. > > It was the Supreme Court that struck it down. AFAIK, only the Supreme Court > has the power to go up against Congress; it's called checks and balances. The > attorneys I've spoken to have agreed with this. > > http://www.epic.org/cda/ That says that they initiated the constitutional challenge to the CDA in federal court in Philadelphia on February 8, 1996, and sought a declaration that the statute is unconstitutional. [...] On June 12, 1996, a special three-judge court in Philadephia ruled that the Communications Decency Act is an unconstitutional abridgement of rights protected by the First and Fifth Amendments. The Department of Justice filed an appeal with the U.S. Supreme Court, which heard oral arguments in the case -- now known as Reno v. ACLU -- on March 19. [...] In a landmark 7-2 decision issued on June 26, the United States Supreme Court affirmed the lower court decision... Note especially the "court in Philadelphia ruled ... Department of Justice filed an appeal" part. > > That court has the authority to find for the plaintiff (challenging the > > law), at least citing a previous precedent of a higher court to suggest > > that the law is invalid under the application of existing caselaw theories. > > > > The Supreme Court doesn't have any special position with regard to > > determinations of unconstitutionality, except that, if it does decide a > > question, its interpretation will prevail, unless people ignore it. :-) > > Not according to the United States Constitution. It makes it fairly clear > that the First Law of the United States is the Constitution; following that > is a balance of three powers - Congress, the President and the Supreme > Court. All other courts are inferior (the Constitution's word) to these > three. Federal courts overturn acts of state legislatures, not acts of > Congress. I don't know how to argue against this except to point out that facial challenges get filed in United States District Courts, which sometimes grant them. > If a case gets appealed to the point that it is obvious that in order to > settle it the constitutionality of a congressional act must be called into > question, only the Supreme Court has the authority to make that call. > > If you doubt it, I challenge you to cite a single case where any court > inferior to the Supreme Court overturned a congressional act or an executive > order. For an act of Congress: http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/960612_aclu_v_reno.decision (E. D. Penn.) And again (with the same parties, in the same court, for another act of Congress): http://www.aclu.org/court/acluvrenoII_pi_order.html Similarly for an executive action (under the direct authority of a series of executive orders): http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/970825_decision.html (N. D. Cal.) http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/19990506_circuit_decision.html (9th Circuit, on appeal from same) I'm sorry that the only cases which occur to me offhand are "famous" Internet civil liberties cases; I know that there are many others, but the parties don't occur to me offhand. The Supreme Court only has original jurisdiction for a _very_ few cases; in almost every case, it has appellate jurisdiction. But facial challenges to pretty much any kind of Federal government action have happened; where do you think they were filed, if not in lower Federal courts? -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:20:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27827 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:20:29 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA27824 for ; Mon, 13 Mar 2000 17:20:28 -0500 Received: (qmail 24456 invoked by uid 500); 13 Mar 2000 23:39:27 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 13 Mar 2000 23:39:27 -0000 Date: Mon, 13 Mar 2000 15:39:27 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu cc: rmiller@duskglow.com Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313152750.B29348@duskglow.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Let's take this flame war through personal email discussion. I just made a carbon copy to you. Kent On Mon, 13 Mar 2000, Russell Miller wrote: > On Mon, Mar 13, 2000 at 02:48:29PM -0800, Kent Nguyen wrote: > > > I was hoping someone would respond to this. > > > I can see why. > > > "I am not a lawyer." Doesn't mean you can't represent one in > > court. There is equal representation in court you know. Ever fought a > > ticket? > > > AFAIK, you can represent *yourself*. You may not represent others without > a valid license. Nor may you profit from legal advice. > > > Worst case, your website goes down, you get arrest and put a bail for > > $10K. That's not "grass", that's the violation to go against the court > > injunction. If you can afford the process take a chance. Com'n it's only > > money. When you win the case, try to countersuit for loss damages. I > > don't believe in an eye for an eye. I do believe in opportunity cost. If > > they waste your time, you should be compensated. > > > So you're advocating openly flaunting an injunction? Pardon me for getting > blunt: WHAT DO YOU THINK WE STAND FOR HERE? here is a bunch of people > trying to find and research arguments to help the lawyers to win our case, > and all I've seen you do on this list is spout dubious legal theories you > have not been able to back up and basically waste everyone's time responding > to you, someone who obviously is not interested in anything but putting forth > his views at the expense of truth and the effort that it takes to refute them. > > In plain words, you are wasting everyone's time, you obviously have no idea > what this list stands for, and I'd recommend you going back and reading > EVERY SINGLE POSTING to this list until you figure out that we are here to > prove or disprove legal theories - LEGALLY. What you *feel* has no bearing > unless you can prove it and so far you haven't proven a damned thing - heck, > you haven't even made an attempt at it. > > > "deep shit" is the term used by many who don't know exactly the > > consequence. It's what you call "fear". If I was afraid I wouldn't be in > > this discussion. Everyone here is discussing ways to go against the > > law: DMCA. :) > > > I'd say even knowing exactly the consequence is "deep shit". And even if > we're not afraid, it is not pruydent to be tossed in jail over something like > this when one can have much more effect working at it from the inside - > by coincidence, right where we are. > > > Another disclaimer. Try that as a signature, it'll help. :) > > > So what? Disclaimers are good. Especially when one is needed so that they > do not follow legal advice that may be bonehead without fair warning. > > --Russell > > > > > > > > > Paul Fenimore > > > > > > > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:26:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29031 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:26:38 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA29024 for ; Mon, 13 Mar 2000 17:26:32 -0500 Received: from bugbug (max01-30.suba.com [206.69.121.222]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id RAA00214 for ; Mon, 13 Mar 2000 17:39:39 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] First Amendment. Date: Mon, 13 Mar 2000 17:38:41 -0600 Message-ID: <000001bf8d45$43803a00$de7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Kent Nguyen > Sent: Monday, March 13, 2000 5:03 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] First Amendment. > > > Implementation only if you refer to DeCSS as a program shown by your > screenshot. This is indeed how the MPAA is referring to it. ARguing that this is an incorrect manner in which to refer to it will only cause the MPAA to refer the judge to the screenshot or to something else showing that a binary exists. That is ALL they have to do. The same thing to which I referred you. After seeing that, the judge WILL NOT CARE if DeCSS can ALSO be considered source code. The fact that you CAN call it source code (even if you really can call a binary source code) does NOT mean that you CANNOT attack the binary as breaking some law. This would mean that all programs AS BINARIES are protected as free speech. THIS AIN'T SO. > > DeCSS as source code is ideas. DeCSS As Screenshot is more than ideas, it is also an implementation of ideas which could infringe the MPAA's rights. We are here to argue about the implementation, specifically that it does not infringe the MPAA's rights. The MPAA agrees with you about source code, ok? It doesn't change their suit. > > Shouting "fire" in a crowded area is circumstantial. Like if you go into > an Asian supermarket and shout "fire". Like anyone will pay attention to > you. The shouting of "fire" needs to have "implementation" capability to > be justified. What may seem obvious may not be obvious. > > DeCSS source code is nothing but expression of ideas. DeCSS in binary > format is implmentation. And my point isn't the implementation. The MPAA's point IS the implementation. Your argument is like throwing carburetors at a horse and buggy! sparkane From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:27:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29334 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:27:43 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA29320 for ; Mon, 13 Mar 2000 17:27:41 -0500 Received: (qmail 14197 invoked by uid 502); 13 Mar 2000 23:43:12 -0000 Date: Mon, 13 Mar 2000 18:43:12 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000313184312.A16657@linuxpower.org> References: <20000313170002.R16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Mon, Mar 13, 2000 at 03:26:08PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 03:26:08PM -0800, Kent Nguyen wrote: > On Mon, 13 Mar 2000 greslin@linuxpower.org wrote: > > > On Mon, Mar 13, 2000 at 01:39:57PM -0800, Kent Nguyen wrote: > > > > The purpose of the FAQ is not to generate ideas; that is the purpose of the > > list. The purpose of the FAQ is to provide as factual information as possible > > in order to make sure those "resourceful ideas" actually have some sort of > > foundation, rather than being blown smoke. > "blown smoke" ... new term. What's it mean? It means you're clueless. It means you're talking out of your ass. That's what it means. What part of this isn't clear, Kent? > > > "If all you want is to hear yourself talk, go somewhere else and quit > > > wasting bandwidth." > > > Fine! I'll unsubscribe. > > > > I'm glad we both agree. > > > > > > > > But remember your strongest argument is the First Amendment. I'm done! > > > > Promise? > > Better than promise. Johansen debilerately criticize EFF for not > understanding the First Amendment. Have you read his interview? Johansen > sent me an email to thanking me for understanding that it's a First > Amendment issue. By the way, he's only 16. Kent, this is the funniest thing you've written so far. Johansen criticizes the EFF and that's good enough for you. Oh, my. :) Exactly what does a 16-year-old Norwegian kid know about American legal jurisprudence that the participating attorneys don't? I mean, is your sense of reality so completely warped that you'll accept the Johansen interviews over actual legal advice? > > > Good luck. > > > > > > Btw, how do I unsubscribe from this list? > > > > Typically you would send an unsubscribe notice to the majordomo address. > > I assume in this case you would send a message with "unsubscribe dvd-discuss" > > in the message body, and that the address is "majordomo@eon.law.harvard.edu". > > > > Wendy, is this correct? > Wendy, ever try ezmlm. It's a lot better than majordomo. > > Second thought I don't want to unsubscribe. I think it's fun to try to > poke some hole in Rob's logic. Perhaps we can have a better understanding > why the First Amendment argument is stronger than the "fair use" argument. By all means, stay on board. This is entertaining. I get a certain perverse thrill in watching people embarrass themselves in public; it's a dark side of my nature. For the record, Kent, playing with yourself in public isn't particularly dignified. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:30:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30031 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:30:49 -0500 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30028 for ; Mon, 13 Mar 2000 17:30:49 -0500 Received: from jst (1Cust98.tnt4.lax1.da.uu.net [63.20.61.98]) by gull.prod.itd.earthlink.net (8.9.3/8.9.3) with SMTP id PAA29933; Mon, 13 Mar 2000 15:44:00 -0800 (PST) Message-Id: <4.1.20000313153834.0093b9f0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Mon, 13 Mar 2000 15:43:23 -0800 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <20000313175907.W16657@linuxpower.org> References: <20000313143032.Y13379@cty-alum.org> <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:59 PM 03/13/2000 -0500, greslin@linuxpower.org wrote: >On Mon, Mar 13, 2000 at 02:30:32PM -0800, Seth David Schoen wrote: >> >> I don't think this is correct. Think of a facial challenge to a Federal >> law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). >> That challenge is filed in Federal court, but in a lower court (US District >> Court for a Randomly Chosen District), not the Supreme Court. > >It was the Supreme Court that struck it down. AFAIK, only the Supreme Court >has the power to go up against Congress; it's called checks and balances. The >attorneys I've spoken to have agreed with this. > >http://www.epic.org/cda/ No, the District Court ruled it unconstitutional, the Supreme Court merely affirmed that ruling. BTW, the *only* cases in which the Supreme Court has original jurisdiction (meaning that the case does not come up from a lower court) are where one State sues another. This happens occasionally between California and Arizona over water rights, and recently happened between Ney York and New Jersey over some island or another. ;-) > >If a case gets appealed to the point that it is obvious that in order to >settle it the constitutionality of a congressional act must be called into >question, only the Supreme Court has the authority to make that call. > >If you doubt it, I challenge you to cite a single case where any court >inferior to the Supreme Court overturned a congressional act or an executive >order. Name your stakes, please, I could use a good get rich quick scheme. (Fair warning I've been a practicing constitutional lawyer for 21 years, I do have some small relevant experience on this question.) -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:34:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30828 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:34:55 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA30825 for ; Mon, 13 Mar 2000 17:34:53 -0500 Received: (qmail 14233 invoked by uid 502); 13 Mar 2000 23:50:24 -0000 Date: Mon, 13 Mar 2000 18:50:24 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313185024.B16657@linuxpower.org> References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> <20000313152824.Z13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000313152824.Z13379@cty-alum.org>; from Seth David Schoen on Mon, Mar 13, 2000 at 03:28:24PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 03:28:24PM -0800, Seth David Schoen wrote: > greslin@linuxpower.org writes: > > > > > Otherwise, you end up going into court saying "Yes, we broke the law, but the > > > > law is a violation of the First Amendment!" and the court replies, "So? Take > > > > it up with the Supreme Court and Congress. Court finds against the defendent." > > > > > > > > And the hammer comes down - bang. > > > > > > I don't think this is correct. Think of a facial challenge to a Federal > > > law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). > > > That challenge is filed in Federal court, but in a lower court (US District > > > Court for a Randomly Chosen District), not the Supreme Court. > > > > It was the Supreme Court that struck it down. AFAIK, only the Supreme Court > > has the power to go up against Congress; it's called checks and balances. The > > attorneys I've spoken to have agreed with this. > > > > http://www.epic.org/cda/ > > That says that they > > initiated the constitutional challenge to the CDA in federal court > in Philadelphia on February 8, 1996, and sought a declaration that > the statute is unconstitutional. > > [...] > > On June 12, 1996, a special three-judge court in Philadephia ruled > that the Communications Decency Act is an unconstitutional > abridgement of rights protected by the First and Fifth Amendments. > The Department of Justice filed an appeal with the U.S. Supreme > Court, which heard oral arguments in the case -- now known as Reno > v. ACLU -- on March 19. > > [...] > > In a landmark 7-2 decision issued on June 26, the United States > Supreme Court affirmed the lower court decision... > > Note especially the "court in Philadelphia ruled ... Department of Justice > filed an appeal" part. I didn't say that a federal court couldn't *file* a constitutional challenge. By filing the constitutional challenge in federal court, what they are doing is sending it to the Supreme Court. Why are they doing this? Because they don't have the authority to make that call themselves. Federal courts DO NOT HAVE THE AUTHORITY TO OVERTURN AN ACT OF CONGRESS. Once again, United States Constitution. If the federal court had the authority, they wouldn't have had to send it to the Supreme Court. It was the Supreme Court that ruled on ACLU vs. Reno, not the federal court. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:38:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31542 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:38:07 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31538 for ; Mon, 13 Mar 2000 17:38:06 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 13 Mar 2000 15:51:40 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B199D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] ACCESS as USE Date: Mon, 13 Mar 2000 15:51:39 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: sparky [mailto:sparky@suba.com] >... > The problem is that viewing and access are probably two > different things. As > Paul Fenimore pointed out (in the 2nd? post to this string, which I > started), access as a use would more or less be a new > interpretation of what > a use is; furthermore, Wendy Seltzer pointed out that the copyright > authority Nimmer says that access is like entering a house, > and use is like > what you do once you're in the house. Based on this it seems > unlikely that > we will get anywhere by arguing that access is a form of use. > Seeing as this > argument is unlikely to be established by precedent, it would > be easily > challenged by the MPAA's lawyers, just by their asking us to > provide such a > precedent. "Access is use? Hm, that's interesting.. Where > does it say that?" > Then *they* point to Nimmer, and we're cooked. > Use (viewing) and access are separate things, yes. But without access, you can not use. If they are giving permission to use, they must be implicitly granting permission to access, no? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:40:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31840 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:40:11 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31836 for ; Mon, 13 Mar 2000 17:40:10 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA11669 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 15:50:52 -0800 Date: Mon, 13 Mar 2000 15:50:51 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313155051.B13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> <20000313152824.Z13379@cty-alum.org> <20000313185024.B16657@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000313185024.B16657@linuxpower.org>; from greslin@linuxpower.org on Mon, Mar 13, 2000 at 06:50:24PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > > That says that they > > > > initiated the constitutional challenge to the CDA in federal court > > in Philadelphia on February 8, 1996, and sought a declaration that > > the statute is unconstitutional. > > > > [...] > > > > On June 12, 1996, a special three-judge court in Philadephia ruled > > that the Communications Decency Act is an unconstitutional > > abridgement of rights protected by the First and Fifth Amendments. > > The Department of Justice filed an appeal with the U.S. Supreme > > Court, which heard oral arguments in the case -- now known as Reno > > v. ACLU -- on March 19. > > > > [...] > > > > In a landmark 7-2 decision issued on June 26, the United States > > Supreme Court affirmed the lower court decision... > > > > Note especially the "court in Philadelphia ruled ... Department of Justice > > filed an appeal" part. > > I didn't say that a federal court couldn't *file* a constitutional challenge. > By filing the constitutional challenge in federal court, what they are doing > is sending it to the Supreme Court. Why are they doing this? Because they > don't have the authority to make that call themselves. > > Federal courts DO NOT HAVE THE AUTHORITY TO OVERTURN AN ACT OF CONGRESS. > > Once again, United States Constitution. If the federal court had the > authority, they wouldn't have had to send it to the Supreme Court. It was > the Supreme Court that ruled on ACLU vs. Reno, not the federal court. Who "sen[t] it to the Supreme Court"? Only the Department of Justice (the defendant), on appeal from a judgment entered against them by the lower court. The District Courts in these cases definitely didn't "send" anything to the Supreme Court; the appeals that brought the cases before the court were just like any other appeals. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:41:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA32248 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:41:57 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA32208 for ; Mon, 13 Mar 2000 17:41:56 -0500 Received: (qmail 14287 invoked by uid 502); 13 Mar 2000 23:57:26 -0000 Date: Mon, 13 Mar 2000 18:57:26 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313185726.E16657@linuxpower.org> References: <20000313143032.Y13379@cty-alum.org> <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> <4.1.20000313153834.0093b9f0@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <4.1.20000313153834.0093b9f0@cyberpass.net>; from James S. Tyre on Mon, Mar 13, 2000 at 03:43:23PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I stand corrected. Seth, please accept my apologies. Rob Warren greslin@linuxpower.org www.iag.net/~aleris On Mon, Mar 13, 2000 at 03:43:23PM -0800, James S. Tyre wrote: > At 05:59 PM 03/13/2000 -0500, greslin@linuxpower.org wrote: > >On Mon, Mar 13, 2000 at 02:30:32PM -0800, Seth David Schoen wrote: > > >> > >> I don't think this is correct. Think of a facial challenge to a Federal > >> law (such as in _ACLU v. Reno_ with the CDA, a recent successful example). > >> That challenge is filed in Federal court, but in a lower court (US District > >> Court for a Randomly Chosen District), not the Supreme Court. > > > >It was the Supreme Court that struck it down. AFAIK, only the Supreme Court > >has the power to go up against Congress; it's called checks and balances. The > >attorneys I've spoken to have agreed with this. > > > >http://www.epic.org/cda/ > > No, the District Court ruled it unconstitutional, the Supreme Court merely > affirmed that ruling. > > BTW, the *only* cases in which the Supreme Court has original jurisdiction > (meaning that the case does not come up from a lower court) are where one > State sues another. This happens occasionally between California and > Arizona over water rights, and recently happened between Ney York and New > Jersey over some island or another. ;-) > > > > >If a case gets appealed to the point that it is obvious that in order to > >settle it the constitutionality of a congressional act must be called into > >question, only the Supreme Court has the authority to make that call. > > > >If you doubt it, I challenge you to cite a single case where any court > >inferior to the Supreme Court overturned a congressional act or an executive > >order. > > Name your stakes, please, I could use a good get rich quick scheme. > > (Fair warning I've been a practicing constitutional lawyer for 21 years, I > do have some small relevant experience on this question.) > > -------------------------------------------------------------------- > James S. Tyre mailto:j.s.tyre@cyberpass.net > Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) > 540 South Marengo Avenue Pasadena, California 91101 > Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:55:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02480 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:55:31 -0500 Received: from dial186.roadrunner.com (dial186.cybermesa.com [209.12.75.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA02477 for ; Mon, 13 Mar 2000 17:55:28 -0500 Received: (from paul@localhost) by dial186.roadrunner.com (8.8.7/8.8.7) id RAA03668 for dvd-discuss@eon.law.harvard.edu; Mon, 13 Mar 2000 17:12:16 -0700 Date: Mon, 13 Mar 2000 17:12:15 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313171215.A3552@localhost> References: <20000313144442.A2747@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from kent@newyen.com on Mon, Mar 13, 2000 at 02:48:29PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm not going to engage in a debate on this issue. Others, fine. Don't insult me. I'm not an idiot, and I never said or implied you were. Try to be polite to me, and I'll do the same for you. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 17:57:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02861 for dvd-discuss-outgoing; Mon, 13 Mar 2000 17:57:31 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA02858 for ; Mon, 13 Mar 2000 17:57:30 -0500 Received: (qmail 24594 invoked by uid 500); 14 Mar 2000 00:16:29 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 00:16:29 -0000 Date: Mon, 13 Mar 2000 16:16:29 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] First Amendment. In-Reply-To: <000001bf8d45$43803a00$de7945ce@bugbug.WinNATDomain> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000, sparky wrote: > > > > -----Original Message----- > > From: owner-dvd-discuss@eon.law.harvard.edu > > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Kent Nguyen > > Sent: Monday, March 13, 2000 5:03 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] First Amendment. > > > > > > Implementation only if you refer to DeCSS as a program shown by your > > screenshot. > > This is indeed how the MPAA is referring to it. ARguing that this is an > incorrect manner in which to refer to it will only cause the MPAA to refer > the judge to the screenshot or to something else showing that a binary > exists. That is ALL they have to do. The same thing to which I referred you. > After seeing that, the judge WILL NOT CARE if DeCSS can ALSO be considered > source code. The fact that you CAN call it source code (even if you really > can call a binary source code) does NOT mean that you CANNOT attack the > binary as breaking some law. This would mean that all programs AS BINARIES > are protected as free speech. THIS AIN'T SO. > > > > > > DeCSS as source code is ideas. > > DeCSS As Screenshot is more than ideas, it is also an implementation of > ideas which could infringe the MPAA's rights. We are here to argue about the > implementation, specifically that it does not infringe the MPAA's rights. > The MPAA agrees with you about source code, ok? It doesn't change their > suit. Wooohoo! This should be in the FAQ: "The MPAA agress with you about source code, ok?" Thumbs up!!! Of course, I'm okie. > > > > > Shouting "fire" in a crowded area is circumstantial. Like if you go into > > an Asian supermarket and shout "fire". Like anyone will pay attention to > > you. The shouting of "fire" needs to have "implementation" capability to > > be justified. What may seem obvious may not be obvious. > > > > DeCSS source code is nothing but expression of ideas. DeCSS in binary > > format is implmentation. And my point isn't the implementation. > > The MPAA's point IS the implementation. Your argument is like throwing > carburetors at a horse and buggy! > > > sparkane > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 18:00:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03240 for dvd-discuss-outgoing; Mon, 13 Mar 2000 18:00:32 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA03237 for ; Mon, 13 Mar 2000 18:00:29 -0500 Received: (qmail 14425 invoked by uid 502); 14 Mar 2000 00:15:59 -0000 Date: Mon, 13 Mar 2000 19:15:59 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000313191559.H16657@linuxpower.org> References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> <20000313143032.Y13379@cty-alum.org> <20000313175907.W16657@linuxpower.org> <20000313152824.Z13379@cty-alum.org> <20000313185024.B16657@linuxpower.org> <20000313155051.B13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000313155051.B13379@cty-alum.org>; from Seth David Schoen on Mon, Mar 13, 2000 at 03:50:51PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 13, 2000 at 03:50:51PM -0800, Seth David Schoen wrote: > greslin@linuxpower.org writes: > > > > That says that they > > > > > > initiated the constitutional challenge to the CDA in federal court > > > in Philadelphia on February 8, 1996, and sought a declaration that > > > the statute is unconstitutional. > > > > > > [...] > > > > > > On June 12, 1996, a special three-judge court in Philadephia ruled > > > that the Communications Decency Act is an unconstitutional > > > abridgement of rights protected by the First and Fifth Amendments. > > > The Department of Justice filed an appeal with the U.S. Supreme > > > Court, which heard oral arguments in the case -- now known as Reno > > > v. ACLU -- on March 19. > > > > > > [...] > > > > > > In a landmark 7-2 decision issued on June 26, the United States > > > Supreme Court affirmed the lower court decision... > > > > > > Note especially the "court in Philadelphia ruled ... Department of Justice > > > filed an appeal" part. > > > > I didn't say that a federal court couldn't *file* a constitutional challenge. > > By filing the constitutional challenge in federal court, what they are doing > > is sending it to the Supreme Court. Why are they doing this? Because they > > don't have the authority to make that call themselves. > > > > Federal courts DO NOT HAVE THE AUTHORITY TO OVERTURN AN ACT OF CONGRESS. > > > > Once again, United States Constitution. If the federal court had the > > authority, they wouldn't have had to send it to the Supreme Court. It was > > the Supreme Court that ruled on ACLU vs. Reno, not the federal court. > > Who "sen[t] it to the Supreme Court"? Only the Department of Justice (the > defendant), on appeal from a judgment entered against them by the lower > court. > > The District Courts in these cases definitely didn't "send" anything to > the Supreme Court; the appeals that brought the cases before the court > were just like any other appeals. As I said, I stand corrected. :) Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 19:47:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23709 for dvd-discuss-outgoing; Mon, 13 Mar 2000 19:47:18 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA23706 for ; Mon, 13 Mar 2000 19:47:17 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id VAA06049 for ; Mon, 13 Mar 2000 21:00:29 -0500 (EST) Message-Id: <4.1.20000313082204.00ce1c40@law.harvard.edu> Message-Id: <4.1.20000313082204.00ce1c40@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Mon, 13 Mar 2000 21:04:33 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] This whole case is a ugly rotten PROPOGANDA casewith their buzzword: PIRACY In-Reply-To: <000001bf8c78$a2812500$fb7945ce@bugbug.WinNATDomain> References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:13 PM 3/12/00 -0600, sparky wrote: > >Sampo A Syreeni wrote: >> >> On Sat, 11 Mar 2000, sparky wrote: >> >> >circumvents the MPAA's access control on DVDs. Showing that you >> can pirate >> >DVDs without it only shows that there is more than one way to do it; the >> >challenge before us in this case is to show something positvely >> about DeCSS. >> >> But... If you can make the case a 1st Amendment one (like EFF people are >> likely attempt, at least at some scale), the above demonstration becomes >> useful as a way to prove that DMCA fails strict scrutiny. > I'm still thinking on this one. If a law hit only a small portion of the problem it set out to resolve, you could attack it as not well tailored to its end. That might then be an in to finding an improper or discriminatory purpose in the law. In the speech context, you'd look for content- or viewpoint-based discrimination. My gut feeling is that that doesn' t help so much here. The demonstration would deal with a technological measure rather than the law directly and it's a private lawsuit. Even the government has prosecutorial discretion -- it can choose whom to prosecute and it's very hard to attack prosecutions simply because others weren't prosecuted. Private parties aren't obligated to sue everyone who harms them. Their failure can weigh against them in equitable suits, however -- they may not deserve an injunction if we can show that they've overlooked other, worse, harms, or that enjoining these defendants is useless in the larger scheme (courts don't like to issue useless injunctions). >Yes, but I think that a demonstration of this sort would only be considered >material by the judge if it could show something specific about DeCSS. Of >course I could be wrong about this (Wendy?). If you are not showing anything >specific about DeCSS then such a demonstration would be nothing more than a >head-on attack on 1201, completely out of context of the MPAA's suit. I am >not against this, it just seems to me that, unless we are addressing the >central concern, which is DeCSS's status as a circumventing device within >the scope of 1201, unless this demonstration could be linked back to this >central concern, the judge might consider it immaterial. > >sparky Sounds about right. Unless we can show a closer tie-in, we'd probably lose on a relevance objection to a demo of other xCSS methods. --Wendy --- Wendy Seltzer Fellow, Berkman Center for Internet & Society at Harvard Law School wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 20:35:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02208 for dvd-discuss-outgoing; Mon, 13 Mar 2000 20:35:46 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA02205 for ; Mon, 13 Mar 2000 20:35:45 -0500 Received: from 25915 (250.3.252.64.snet.net [64.252.3.250]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id VAA21655 for ; Mon, 13 Mar 2000 21:49:02 -0500 (EST) Message-ID: <002b01bf8d5f$f66532a0$d559fea9@25915> From: "Ernest Miller" To: References: <20000313145008.G16657@linuxpower.org> <20000313163352.Q16657@linuxpower.org> Subject: Re: [dvd-discuss] First Amendment. Date: Mon, 13 Mar 2000 21:49:34 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----- Original Message ----- From: To: Sent: Monday, March 13, 2000 4:33 PM Subject: Re: [dvd-discuss] First Amendment. > > Well, if the law they are suing under is a violation of first amendment > > protections, then that defense would work regardless of whether it is > > civil or criminal court. > > Only if you're challenging the law, in which case you need to realize that > you're challenging an act of Congress. That means it has to go to the > Supreme Court; a local functionary like Kaplan doesn't have the authority > to overturn an act of Congress. > > Otherwise, you end up going into court saying "Yes, we broke the law, but the > law is a violation of the First Amendment!" and the court replies, "So? Take > it up with the Supreme Court and Congress. Court finds against the defendent." > > And the hammer comes down - bang. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris Actually, the district court in this case does have the authority to declare a law unconstitutional. An appellate court or the Supreme Court can overturn that decision, but the district court can make such a ruling in the first place. From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 21:06:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA08147 for dvd-discuss-outgoing; Mon, 13 Mar 2000 21:06:11 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA08144 for ; Mon, 13 Mar 2000 21:06:10 -0500 Received: from cdpage.com (ddsl91.dnvr.uswest.net [209.180.251.91]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id TAA04076 for ; Mon, 13 Mar 2000 19:19:42 -0800 (PST) Message-ID: <38CDAF72.9CCC5988@cdpage.com> Date: Mon, 13 Mar 2000 20:18:11 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDAcasewith their buzzword: PIRACY References: <4.1.20000313082204.00ce1c40@law.harvard.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: > Even the government has prosecutorial discretion > -- it can choose whom to prosecute and it's very hard to attack > prosecutions simply because others weren't prosecuted. Private parties > aren't obligated to sue everyone who harms them. Their failure can weigh > against them in equitable suits, however -- they may not deserve an > injunction if we can show that they've overlooked other, worse, harms, or > that enjoining these defendants is useless in the larger scheme (courts > don't like to issue useless injunctions). There are FAR worse harms than DeCSS allows. I suspect that it would be very possible to show that not only is DeCSS non-threatening in comparison to the tools real pirates use, but that enjoining these defendants is not only useless but counter-productive. Forgive me for not providing the relevant cites, but I want to get this own before I forget- the argument could be made that by eliminating "casual copying" by individual consumers (not all of which is illegal), the MPAA is encouraging large-scale piracy (all of which is illegal, and much of which is backed by organized crime). > -- Dana J. Parker From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 21:33:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14010 for dvd-discuss-outgoing; Mon, 13 Mar 2000 21:33:41 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA14007 for ; Mon, 13 Mar 2000 21:33:40 -0500 Received: from [38.32.10.246] (helo=ip246.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12UiIL-0004F9-00; Mon, 13 Mar 2000 22:46:57 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] This whole case is a ugly rotten PROPOGANDAcasewith their buzzword: PIRACY Date: Tue, 14 Mar 2000 03:45:20 GMT Message-ID: <38ddb374.42207278@mail.tiac.net> References: <4.1.20000313082204.00ce1c40@law.harvard.edu> <38CDAF72.9CCC5988@cdpage.com> In-Reply-To: <38CDAF72.9CCC5988@cdpage.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id VAA14008 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 20:18:11 -0700, Dana Parker wrote: >Forgive me for not providing the relevant cites, but I want to get this own >before I forget- the argument could be made that by eliminating "casual copying" >by individual consumers (not all of which is illegal), the MPAA is encouraging >large-scale piracy (all of which is illegal, and much of which is backed by >organized crime). The International Intellectual Property Alliance claims piracy losses of $1.3 billion and $1.4 billion for 1999, and 1998, respectively--none of which can be attributed to DeCSS. And that doesn't include the US. http://www.iipa.com/2000_LOSSES.PDF __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 22:11:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23179 for dvd-discuss-outgoing; Mon, 13 Mar 2000 22:11:25 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA23176 for ; Mon, 13 Mar 2000 22:11:24 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id XAA03543 for ; Mon, 13 Mar 2000 23:24:38 -0500 (EST) Message-Id: <4.1.20000313223915.00c45f00@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Mon, 13 Mar 2000 23:28:42 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Legal research guide Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu An informative FAQ on doing legal research is available at: http://www.faqs.org/faqs/law/research/part1/ and http://www.faqs.org/faqs/law/research/part2/ (also ftp://rtfm.mit.edu/pub/usenet/news.answers/law/research/ ) If you haven't been subjected to first-year law school and are interested in the legal research side of this issue, you may want to browse the sections on the federal courts (top of part 1) and weight of authority (middle of part 2) before getting knee deep in case citations. wendy@seltzer.com || wseltzer@kramerlevin.com Fellow, Berkman Center for Internet & Society at Harvard Law School Openlaw DVD -- http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 13 23:32:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA04521 for dvd-discuss-outgoing; Mon, 13 Mar 2000 23:32:15 -0500 Received: from localhost (wseltzer@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA04518 for ; Mon, 13 Mar 2000 23:32:14 -0500 Date: Mon, 13 Mar 2000 23:32:14 -0500 (EST) From: Wendy Seltzer To: dvd-discuss@eon.law.harvard.edu Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Date: Mon, 13 Mar 2000 04:35:44 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA (fwd) In-Reply-To: <20000313005936.B12414@arh1176.urh.uiuc.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII > Well, thats not well defined. Circumvention is when the copyrighted material > is decrypted or unscrambled without the authority of the copyright holder. The > question for the MPAA to answer in front of the judge, is "how do you grant > authority to some owners of DVDs and not others? Is the authority granted > through licenses with the DVD-CCA through to the manufacturers of DVD players > and then finally to the consumer? Or is it implicitly granted to the owner of > the DVD either under their first sale rights, or by the message 'For home > viewing only'?" Ahhhh, so if we can go into court and convince the judge that the purchase of a DVD has the implied right to play that DVD on any DVD player irrespective of operating system, etc, then we may have something. Really, the access control measure for DVD's is in fact the proprietary nature of the DVD technology itself. I would say this is a very reasonable and defendable argument because at no time when somebody purchases a DVD are they specifically told what rights they have been granted by the copyright holder. They get the usual FBI warning saying that they are not allowed to show it publicly, etc, but they are never told anything about CSS, etc. If you buy a videotape, or a CD, it is implied that you can play it on any player capable of doing so, so why is it any different with DVD? Thus the natural extension of this is that reverse engineering CSS, was intended to establish compatibility and to insure the implied right of playback for Linux users, etc. I think the MPAA's position would be much more defendable if this was DIVX technology we were talking about. With DIVX there was a clear establishment of the fact that you paid for each use of the disc. If you bought the disc for $3 and then went and cracked the code that allowed you to watch it multiple times without paying for that right, then that would clearly be circumvention of an access control. But with DVD, you buy the disc, and play the disc, and there is no clear rules about what you are allowed to play it on. i see an important distiction between these two technologies and how access is controlled to the underlying information. It seems that the definition of an access control device is overbroad, and I think that may be a serious vulnerability in the MPAA's case. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 01:04:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16855 for dvd-discuss-outgoing; Tue, 14 Mar 2000 01:04:23 -0500 Received: from shadow.csufresno.edu (relay-1.csufresno.edu [129.8.57.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16852 for ; Tue, 14 Mar 2000 01:04:17 -0500 Received: from lennon.csufresno.edu (smb23@lennon.csufresno.edu [129.8.57.50]) by shadow.csufresno.edu (8.9.3/8.9.3) with ESMTP id XAA11443 for ; Mon, 13 Mar 2000 23:17:26 -0800 (PST) Received: from localhost (smb23@localhost) by lennon.csufresno.edu (8.9.3/8.9.3) with SMTP id XAA28268 for ; Mon, 13 Mar 2000 23:17:18 -0800 (PST) Date: Mon, 13 Mar 2000 23:17:17 -0800 (PST) From: Steve M Bibayoff To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PIRACY In-Reply-To: <38ddb374.42207278@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 14 Mar 2000, Ron Gustavson wrote: > The International Intellectual Property Alliance claims piracy losses > of $1.3 billion and $1.4 billion for 1999, and 1998, respectively--none of which > can be attributed to DeCSS. And that doesn't include the US. > > http://www.iipa.com/2000_LOSSES.PDF This whole claim seemed a little rotten. First of, nice timing of the report comes out. Then, at least i haven't found, any real specifics on how they came about this material. Then they do little to answer the question about these loses, if there where no counterfit, would the movie industry actually seen these incomes going to them. Also how many "illegal" copies that where bought where replaced with legit copies. Then there is the whole question of who exactly is IIPA? Who are its members? Slightly off topic, but I know this will come up as part of damages discussions. Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 08:14:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA20334 for dvd-discuss-outgoing; Tue, 14 Mar 2000 08:14:35 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA20331 for ; Tue, 14 Mar 2000 08:14:34 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id JAA20036 for ; Tue, 14 Mar 2000 09:27:48 -0500 (EST) Message-Id: <4.1.20000314000053.00bd01a0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Tue, 14 Mar 2000 09:31:54 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Authority (was Censorware reverse-engineering and DMCA) In-Reply-To: <20000313141407.A2480@localhost> References: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> <20000311114003.A659@localhost> <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id IAA20332 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:14 PM 3/13/00 -0700, fenimore@roadrunner.com wrote: >On Sat, Mar 11, 2000 at 06:25:15PM -0600, sparky wrote: >> Paul wrote: >> > Yes, but why does DeCSS get classified as circumvention? I don't see >> > how "with authority" can attach to a player device. If "authority" never >> > attaches to a player, how can § 1201(a)(2) distinguish circumventing >> > from non-circumventing _players_? >> >> It seems to me your position rests on the statements: >> "if sale then (authority to view) = (authority to circumvent access >> control)" > >The "if sale" here is addressing the issue at a level I haven't resolved >to my own satisfaction. My post was trying to show that authority >cannot attach to the player, but must attach to the tangible copy, >and perhaps to a person. Given what we have to go by, that doesn't sound unreasonable. Ownership of the DVD media is worthless without the right to access and view it. To make logical or commercial sense of the purchase, we assume the buyer of a DVD has gotten something -- the ability to make use of it -- and since private display and viewing are not exclusive rights of the copyright holder that need to be transferred, you also add "authority to access." You didn't have to grant "access" rights to a book, so we're not going to find pre-digital media examples of access authorization. While you could imagine a different scheme, where you were sent free DVDs and had to pay to activate an access key, that would have to give explicit warning that ownership of the disk did not convey rights to access. The default, uncontradicted by the language on the jewel case, is that authority to access comes with the disk. Part of the argument is for simplicity: if it's not clearly spelled out when authority is conveyed, involve the fewest possible parties. If you only need the copyright holder and distributor, why involve the DVD player too? One area where we might find precedent is video games. Sega, Sony, & Co. have long been trying to stop people from playing their game cartridges in other players or from playing unlicensed games on their consoles. Looking at those cases as access control cases may be useful. --Wendy >You are asking _when_ that authority is conveyed. It will either be >at publication or at first sale. > >In what follows "it" and "authority" mean "authority to private >performance." > >If it conveys at publication, accessing a scrambled cable TV >signal might not be a violation of § 1201. If it conveys at >publication, it cannot attach to a person because publication >is only a function of what the copyright holder does. From >17 U.S.C. § 101: > > ''Publication'' is the distribution of copies or phonorecords > of a work to the public by sale or other transfer of ownership, > or by rental, lease, or lending. The offering to distribute > ^^^^^^^^^^^^^^^^^^^^^^ > copies or phonorecords to a group of persons for purposes of > ^^^^^^^^^^^^^^^^^^^^^ > further distribution, public performance, or public display, > constitutes publication. A public performance or display of a > ^^^^^^^^^^^^^^^^^^^^^^^ > work does not of itself constitute publication. > >If authority conveys at publication, then accessing a copy that >infringes under § 106(1) would not be an offense. > >I expect the court to reject arguments that authority conveys >at publication, unless it can be shown that it must convey at that >time to protect the right to read. > >If it conveys at first sale, it can either attach to a person or to >the media. If it attaches to a person then accessing a stolen DVD >will be an offense under § 1201(a)(1). If authority attaches to >the media, then accessing the illegally acquired DVD is not >a violation of § 1201(a)(1). > >I don't know enough about conveyance (have I got the right word here?) >to say if attaching authority under § 1201 to a person would lead >to a situation where some transfers of ownership would fail to >convey the right to access. If so, then there is a big stick called >Griswold that we can use to attack the "attaches to a person" theory. > >The equality in your "if then" statement is more or less a result >of the Griswold v. Connecticut (1965) decision. The Supreme Court >held that for purposes of the First Amendment, speaking and listening; >writing, reading; recording and performance; must be considered >as insuperable pairs if the First is to have any real-world meaning. >Because access sits squarely between recording and performance, >Griswold seems to say it should be considered as equivalent to the >right to speak. > >The MPAA have already argued during the hearing in Kaplan's court >that access is more than a wedge between speaking and listening. >I think this why they didn't completely stop mentioning the "fact" >that § 1201(a) (and presumably (b)) protect an exclusive right >to control reproduction under § 106(1). (Quotes are intended to >be derogatory.) I think this is hog-wash, and have been turning >this one over in my mind for days. I think I'm close to having >a viable theory. I'll refrain from posting here to stay on-topic >and give me a little more time to think about it. > >If authority doesn't convey, but is at the pleasure of the copyright >holder, then the right to read is toast. Griswold says that can't happen. > >> and >> "DeCSS =another DVD player by virtue of the functionality it shares with any >> licensed DCCA DVD player". > >More precisely, the access functionality shared between programs. Other >functionality might be regulated under the exclusive rights in § 106. >Interestingly enough § 1201(k) directly addresses protecting the >exclusive right under § 106(1). > >Which leads to another point --- there are at least seven activities >that a copyright holder can authorize under Title 17. One each for >§ 106(1,2,3,4,5,6) and § 1201. The MPAA seems to be claiming that § 1201 >is two rights: access and trafficking. This last point is really just >another angle on the delegation and U.S. v. Paramount (1948) arguments. > > >Paul Fenimore wendy@seltzer.com || wseltzer@kramerlevin.com Fellow, Berkman Center for Internet & Society at Harvard Law School Openlaw DVD -- http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 09:15:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA29348 for dvd-discuss-outgoing; Tue, 14 Mar 2000 09:15:27 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA29344 for ; Tue, 14 Mar 2000 09:15:26 -0500 Received: from sympatico.ca ([206.172.236.49]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000314151525.DAM3031.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Tue, 14 Mar 2000 10:15:25 -0500 Message-ID: <38CE5957.10C6A9C2@sympatico.ca> Date: Tue, 14 Mar 2000 10:23:03 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] The "authorization" argument, revisited... References: <20000310221659.18355.qmail@hotmail.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hi group - I was away for the weekend, so it's been a few days since the parent post was mailed, but there has since been some discussion of the 'authorization' argument which revisits the argument I penned about a week ago, reproduced below. Also, I wanted to specifically address Joshua's arguments below, as I think they misunderstand the argument. Joshua Daub wrote: > > Mr. Ian Hay wrote: > >Here are some non-dead-end ideas: > > > >(1) This circumventing device does not fit into 1201(a)(2) because >it is > >primarily used for "authorized" circumvention as required by >the Act. If > >DeCSS is used to view a legally purchased DVD, the >purchase price is > >consideration for the "authorization". See my post >of Saturday March 4 > >with the subject "Authorization: Another way of >seeing it" for a more > >elaborate explanation. I personally think >this is the best of the bunch, > >despite the absense of substantial comment. > > This is dead. Here are the reasons: > > 1. Nowhere does the DMCA state anything about "authorized circumvention." Unfortunately, you have misread the statute here, and this is partly my fault. I used the word "circumvent" in a colloquial sense rather than as defined in 1201. I meant "authorized decryption" which 1201 says plenty about. All your arguments below miss the mark, as I will attempt to re-illustrate. Because my post of March 4 addressed every one of your points, I will now reproduce it: On or about March 4, Ian wrote: > Here's the problem as I see it: > > Assuming that the person using DeCSS or other functionally similar > devices (a) intend to use it for viewing only and (b) bought and paid > for the DVD - Does the "authority of the copyright owner" required by > 1201(a)(3) take place: > > (1) at the point of purchase of the DVD; or > (2) at the point of purchase of the licensed CSS decryption device > (purchasing Xing, buying a stand-alone player, etc)? > > If the answer is (1), the authorization has already been granted to the > bona fide purchaser and user of the DVD, and therefore use of DeCSS does > not fall under the "circumvention" definition, barring a tracing of > licensing provisions between the MPAA and those it represents, DVD-CCA, > the manufacturer of the software/hardware viewers and the end consumer. > > If the answer is (2), then "authority" is equivalent to the state of > having purchased/licensed a DVD-CCA licensed viewer. No authority is > present in the use of DeCSS and functionally similar devices. > > It is important to underline that the statute refers to the authority of > "the copyright owner", as opposed to the authority of those who > implemented CSS. This suggests that the "authority" is granted at the > time of purchase of the DVD itself: it is illogical to say that > purchasing/licensing of a software or hardware DVD player grants -in > itself- the authority to access each individual copyrighted work that it > can be used for. > > So the proper argument would be one of implied authority as > consideration for the money paid for the DVD. We can go back to our > hypothetical/mythical 'victim of 1201' to see how this works: A person > wants to buy a DVD movie. He is unaware that he will not be able to > view it without a licensed player. He runs, say, Linux at home, and has > a DVD player computer component. He goes to a video store, and pays > money for a DVD. There is no indication on the DVD that there are > further restrictions on him other than the statutory provisions not to > copy or otherwise violate the rights of the copyright owner. He puts > the DVD in the drive, fires up his Linux software (unlicensed) DVD > player, and he sees garbage. > > He is livid (pun) - he has paid consideration for the right to view the > player: no other contractual terms were evident on the DVD. But the > question is, what -exactly- was the money he paid for the DVD in > consideration of? > > We argue: it was in consideration of an express authority to view the > movie. It is a logically necessary step to say that it was therefore an > implied authority to decrypt the movie. That is the logically necessary > step vis-a-vis -licensed- players, so why not here? Because he had > implied authority to decrypt, he was not 'circumventing' under > 1201(a)(3)(A). > > Problem: succeeding in this argument requires a legal analysis of the > transfer and licensing of rights that pass from the copyright owner, to > DVD-CCA, to the manufacturer of the licensed viewer, to the consumer. > It would be interesting to see how the legal relationships are > structured, by my instinct is that 'authority to decrypt' passes to the > consumer NOT by virtue of the license of the player, but by virtue of > the implied or express license granted at the point of purchase of the > DVD. > > Note what else this argument does: So far, the above describes an > individual doing the circumventing, and is thus a proper argument for a > future defendant in a 1201(a)(1) case. BUT, because the above > establishes that a bona fide purchaser and viewer of a DVD using > non-licensed players falls outside of the 'circumvention' definition in > 1201(a)(3)(A), the "primary purpose" of the device - regardless of the > three particular defendants - is no longer circumvention. Thus the > device itself falls outside of the "primary purpose is for circumvention > of an access-control device" prohibition in 1201(a)(2), which obviously > speaks directly to our case. > > I really, really like this argument, as it does not rely on > constitutional grounds, fair use, and other more difficult avenues of > approach discussed here. Like the RE exception, it fits directly within > the statute as it stands, and weakens its practical application to any > real-world situation. (i.e: devices that are -truly- aimed at piracy > will be caught under the more justifiable prohibition in 1201(b): > over-reaching plaintiffs who want to use 1201(a)(2) to sue people who > have already paid them money to view their movies will find that they > have given them the requisite 'authority'.) So what I'm arguing is that the act of using DeCSS does not fall under the definition of "circumvent a technological measure" in 1201(a)(3)(A), because decryption of CSS encoded is not "circumvention", PROVIDED the end-use of DeCSS and related technologies are for non-infringing purposes. By non-infringing, I mean not for purposes that Title 17 says are within the exclusive rights of the copyright holder. I.e., viewing. I support this as follows: A person who uses a -licensed- software DVD player must, at some point in the stream of commerce, be given explicit or implicit "authority" to decrypt a CSS encrypted work. The question is -where- and -when- is that authority granted. The answer is NEVER EXPLICITLY. (a) There is nothing on a purchased DVD other than the copyright notice that grants any explicit authorization to decrypt. Copyright warning is limited to notice that the copyright owner has the exclusive right to do the things that Title 17 says he has the right to do exclusively. This does not include authorization to decrypt, so no such -explicit- authorization is given. (b) The makers of software DVD players are CSS-licensees, but no authorization is passed explicitly through the CSS-licensee to the consumer. I have read the Xing license agreement (merely as one example) - not only does it say nothing about authorization to decrypt, but consistent with my instincts above, it EXPLICITLY gives notice that NO rights in the movies that can be played with that player are given by the Xing license agreement: "7. All video, audio, and other content accessed through the Product is the property of the applicable content owner an may be protected by applicable copyright law. This Agreement gives you no rights to such content." On the subject of authorization to decrypt, the license is silent. SO - since at either of the two relevant points of commercial transaction, no explicit authorization is given: the authorization MUST be implicit. (Note that it must -exist-, otherwize users of licensed players are, unwittingly, running afoul of the future 1201(a)(1), and its manufacturer is, despite their CSS license, running afoul of 1201(a)(2). (***Note here that the Act speaks of trafficking in a device that decrypts without authorization, and -not- trafficking without authorization a device that decrypts.) My argument is that such implicit authorization comes, and can come at no other point than, the point of sale of the DVD. Authorization is implied when the consumer -pays consideration- for that DVD. The authorization also likely depends on consumer's agreement with the terms printed on the DVD itself which, recall, are limited to a copyright warning. So my argument in a nutshell is that the 'authorization' required to evade liability under 1201 must logically be given to BOTH users of licensed players and unlicensed players, or to NEITHER. If there is authorization, there is no circumvention. If there is no circumvention, the defendants simply do not fit within the statute. End of story. So, back to your post: > 2. Note the "OR" between § 1201(a)(2)(B) and (C). This indicates that one > is liable under § 1201(a)(2) if one does any of (A), (B), or (C). Yes - all three may not use the words "primarily", but all three use the word, and depend on the word "circumvent". Demonstrating that DeCSS "circumvents" nothing is a triple takout. (Forgive me - I was watching the Canadian Curling Championships this weekend.) > 3. Even assuming DeCSS is "primarily used . . . to view a legally purchased > DVD," this only allows DeCSS's creators/distributors to avoid liability > under 17 U.S.C. § 1201(a)(2)(A). See above > 4. It does not allow DeCSS's creators/distributors to avoid liability under > 17 U.S.C. § 1201(a)(2)(B) or (a)(2)(C). > > 5. 17 U.S.C. § 1201(a)(2)(B) provides that "[n]o person shall manufacture, > import, offer to the public, provide, or otherwise traffic in any > technology, product, service, device, component, or part thereof, that - . . > > (B) has only limited commercially significant purpose or use other than to > circumvent a technological measure that effectively controls access to a > work protected under this title. Note the words "circumvent a technological measure". > Nothing in this section requires "primarily." Although one could argue that > DeCSS has a "commercially significant purpose" -- that is playing DVDs -- > that purpose is not "other than to circumvent" because everytime one plays a > DVD one circumvents the access control. No they don't - they have authorization to decrypt, therefore they do NOT circumvent. > 4. 17 U.S.C. § 1201(a)(2)(C) is worse. This section provides that "[n]o > person shall manufacture, import, offer to the public, provide, or otherwise > traffic in any technology, product, service, device, component, or part > thereof, that - . . . > > (C) is marketed by that person or another acting in concert > with that person with that person's knowledge for use in > circumventing a technological measure that effectively controls > access to a work protected under this title. Since there is no circumventing, the device is NOT marketed for any such use. > The only limiting language in this section is not on the use of the > technology but on the way it is distributed: it must be "marketed". One is > liable under this section if the technology may be used in any way to > circumvent. As I stated above, all uses of DeCSS circumvent. > > This is what J. Kaplan meant when he said: > > THE COURT: Is there any doubt at all that DeCSS is a device that circumvents > CSS? > > MS. GROSS: It does descramble it. > > THE COURT: Okay. > > MS. GROSS: But that- > > THE COURT: With that established, let?s proceed. This is one of many thinks that Kaplan got wrong. Some of those errors were due to the fact that the EFF got the interpretation wrong and failed to argue the case properly, some not. The fact is that the above quote only demonstrates that no factual evidence was brought to the proceedings to demonstrate that most users of the offensive technology were going to be paid purchasers and viewers of DVD's. Such paid purchase includes the 'authorization' necessary to be brought out of the circuvention definition, and therefore the J's statement is incorrect. (Ms Gross might have gone further with her "it does descramble it" statement to underline the inherent difference between the two terms.) > 6. Therefore, under the statute, the only way to circumvent access control > without violating the act is to do so " [with] the authority of the > copyright owner;" as specified under § 1201(a)(3)(A). Yes, and as I've argued, such authority comes implicitly with the purchase price of a DVD. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 09:15:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA29351 for dvd-discuss-outgoing; Tue, 14 Mar 2000 09:15:28 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA29347 for ; Tue, 14 Mar 2000 09:15:27 -0500 Received: from sympatico.ca ([206.172.236.49]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000314152209.EGP3031.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Tue, 14 Mar 2000 10:22:09 -0500 Message-ID: <38CE5AEC.6F3C0B21@sympatico.ca> Date: Tue, 14 Mar 2000 10:29:48 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority (was Censorware reverse-engineering and DMCA) References: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> <20000311114003.A659@localhost> <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> <4.1.20000314000053.00bd01a0@law.harvard.edu> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: > > At 02:14 PM 3/13/00 -0700, fenimore@roadrunner.com wrote: > >On Sat, Mar 11, 2000 at 06:25:15PM -0600, sparky wrote: > >> Paul wrote: > >> > Yes, but why does DeCSS get classified as circumvention? I don't see > >> > how "with authority" can attach to a player device. If "authority" never > >> > attaches to a player, how can § 1201(a)(2) distinguish circumventing > >> > from non-circumventing _players_? > >> > >> It seems to me your position rests on the statements: > >> "if sale then (authority to view) = (authority to circumvent access > >> control)" YES! > >The "if sale" here is addressing the issue at a level I haven't resolved > >to my own satisfaction. My post was trying to show that authority > >cannot attach to the player, but must attach to the tangible copy, > >and perhaps to a person. ...and only implicitly at that. See below. > Given what we have to go by, that doesn't sound unreasonable. Ownership of > the DVD media is worthless without the right to access and view it. To make > logical or commercial sense of the purchase, we assume the buyer of a DVD > has gotten something -- the ability to make use of it -- and since private > display and viewing are not exclusive rights of the copyright holder that > need to be transferred, you also add "authority to access." You didn't > have to grant "access" rights to a book, so we're not going to find > pre-digital media examples of access authorization. I've posted another follow-up note on the subject of authority, in which I take a closer look at the licensing regime to find out where such authority is given. Please take a look. One observation is that the license for a software DVD player (Xing in this case) not only is silent about explicit authority to decrypt, but it specifically notes that no rights in DVD used with the player are given by that license. Authority MUST, therefore, be granted at the point of purchase of the movie: and only implicitly at that. Therefore, authority to decrypt is - in my reading - buried within the transaction price. This price is paid by users of both licensed and unlicensed players, so authority much attach to both or neither of them, but it cannot be determined on whether the player is licensed or unlicensed. More in the other post. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 09:53:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03237 for dvd-discuss-outgoing; Tue, 14 Mar 2000 09:53:21 -0500 Received: from geulph.frogspace.net (root@[64.6.226.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA03234 for ; Tue, 14 Mar 2000 09:53:20 -0500 Received: from [210.160.35.47] (helo=localhost) by geulph.frogspace.net with smtp (Exim 3.02 #1) id 12Utq6-00072a-00 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 08:06:34 -0800 Message-ID: <001101bf8dcf$4e54f300$0100007f@localhost> From: "Robert Wilde" To: Subject: [dvd-discuss] Another DMCA Case Date: Tue, 14 Mar 2000 16:06:26 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2919.6600 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The case Kelly v. Arriba Soft Corp. touched on some DMCA issues that may be applicable here. Here's a link to the decision: http://pub.bna.com/ptcj/99-560.htm And an excerpt: "Section 1202(b)(1) does not apply to this case. Based on the language and structure of the statute, the Court holds this provision applies only to the removal of copyright management information on a plaintiff's product or original work. Moreover, even if § 1202(b)(1) applied, Plaintiff has not offered any evidence showing Defendant's actions were intentional, rather than merely an unintended side effect of the Ditto crawler's operation." Robert Wilde From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 09:54:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03407 for dvd-discuss-outgoing; Tue, 14 Mar 2000 09:54:16 -0500 Received: from geulph.frogspace.net (root@[64.6.226.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA03403 for ; Tue, 14 Mar 2000 09:54:15 -0500 Received: from [210.160.35.47] (helo=localhost) by geulph.frogspace.net with smtp (Exim 3.02 #1) id 12Utr7-0007c9-00 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 08:07:37 -0800 Message-ID: <001801bf8dcf$73f2c560$0100007f@localhost> From: "Robert Wilde" To: Subject: [dvd-discuss] Another DMCA Case Date: Tue, 14 Mar 2000 16:06:26 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2919.6600 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The case Kelly v. Arriba Soft Corp. touched on some DMCA issues that may be applicable here. Here's a link to the decision: http://pub.bna.com/ptcj/99-560.htm And an excerpt: "Section 1202(b)(1) does not apply to this case. Based on the language and structure of the statute, the Court holds this provision applies only to the removal of copyright management information on a plaintiff's product or original work. Moreover, even if § 1202(b)(1) applied, Plaintiff has not offered any evidence showing Defendant's actions were intentional, rather than merely an unintended side effect of the Ditto crawler's operation." Robert Wilde From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 10:16:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA08686 for dvd-discuss-outgoing; Tue, 14 Mar 2000 10:16:42 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA08683 for ; Tue, 14 Mar 2000 10:16:41 -0500 Received: from sympatico.ca ([206.172.197.214]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000314162926.XDJQ13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Tue, 14 Mar 2000 11:29:26 -0500 Message-ID: <38CE6AB1.7C6BB08B@sympatico.ca> Date: Tue, 14 Mar 2000 11:37:05 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE References: <20000313195721.9416.qmail@hotmail.com> <20000313153516.I16657@linuxpower.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org wrote: > > DeCSS is source code that was compiled under DOS and uses a DLL to run under > > windows. DeCSS is also compiled under Linux to decrypt DVD's for the LiViD > > program that plays DVD's in Linux. > > As far as we can tell, this is incorrect. DeCSS is purely a Windows application, > not a DOS or Linux program. The source code - after quite a bit of preaching > from the LiViD crew - was given to Derek Fawcus of the LiViD team, who studied > the code and wrote a better descrambling routine. That routine, not DeCSS, > because part of later versions of DeCSS. > > DeCSS and the LiViD player are not the same thing. Only DeCSS is being disputed > right now in the 1201 cases. This is true, but if only DeCSS in binary form were at risk here, the injunctions probably wouldn't bother me. The main issue that concerns me and others, and what ought to be communicated effectively to a judge, is that it is a short step from banning a binary-form windows executable with ambiguous purposes, to banning a source-form Linux project with laudable and fair purposes. The Judge may not now see the connection between the two, but the two projects have at their core the same basic technology that enables descrambling of encrypted works. The -legal- justification for the injunction against DeCSS may be that it is a windows-only executable in binary form that allegedly has as its purpose the -copying- of DVD's (none of which fits the LiViD project), but the -motivation- for seeking the injunction is very different, and applies with all fours to LiViD. You and I know all this, but this connection between the projects should also be communicated so that the Court understands the ramifications of enjoining a neutral technology cloaked in an offensive 'wrapper'/presentation, on the same technology presented as a fair tool for non-infringing purposes. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 10:30:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11280 for dvd-discuss-outgoing; Tue, 14 Mar 2000 10:30:09 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA11277 for ; Tue, 14 Mar 2000 10:30:08 -0500 Received: from [38.32.10.23] (helo=ip23.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12UuPh-0001G9-00; Tue, 14 Mar 2000 11:43:21 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PIRACY Date: Tue, 14 Mar 2000 16:42:02 GMT Message-ID: <38d3681b.5269513@mail.tiac.net> References: In-Reply-To: X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id KAA11278 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 23:17:17 -0800 (PST), Steve M Bibayoff wrote: >On Tue, 14 Mar 2000, Ron Gustavson wrote: > >> The International Intellectual Property Alliance claims piracy losses >> of $1.3 billion and $1.4 billion for 1999, and 1998, respectively--none of which >> can be attributed to DeCSS. And that doesn't include the US. >> >> http://www.iipa.com/2000_LOSSES.PDF > >This whole claim seemed a little rotten. First of, nice timing of the >report comes out. Then, at least i haven't found, any real specifics on >how they came about this material. Then they do little to answer the These figures are more political than anything. But, that's part of the trade deficit game. I have to read some more details on what the figures are based. The dollar figure is "loss" and piracy only counts for a percentage of this. "Video piracy" figures range from 5% to 100%. (I assume most of the "Motion Pictures" figures pertain to unauthorized VHS tapes.) To contrast, their '98 loss for business software is $3.3 billion And that industry has, thus far, decided to forgo copy protection measures. >question about these loses, if there where no counterfit, would the movie >industry actually seen these incomes going to them. Also how many >"illegal" copies that where bought where replaced with legit copies. Then >there is the whole question of who exactly is IIPA? Who are its members? An interesting note, if you click around the Web site, they now refer to "the copyright industry." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:18:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26238 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:18:30 -0500 Received: from dial87.cybermesa.com (dial87.cybermesa.com [209.12.75.87]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA26235 for ; Tue, 14 Mar 2000 11:18:27 -0500 Received: (from paul@localhost) by dial87.cybermesa.com (8.8.7/8.8.7) id KAA01208 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 10:34:46 -0700 Date: Tue, 14 Mar 2000 10:34:45 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The "authorization" argument, revisited... Message-ID: <20000314103444.B584@localhost> References: <20000310221659.18355.qmail@hotmail.com> <38CE5957.10C6A9C2@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <38CE5957.10C6A9C2@sympatico.ca>; from ian.hay@sympatico.ca on Tue, Mar 14, 2000 at 10:23:03AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 10:23:03AM -0500, Ian Hay wrote: [ ... ] > My argument is that such implicit authorization comes, and can come at > no other point than, the point of sale of the DVD. Authorization is I would say that authorization can come _no later_ than at the point of sale. See below. > implied when the consumer -pays consideration- for that DVD. The > authorization also likely depends on consumer's agreement with the terms > printed on the DVD itself which, recall, are limited to a copyright > warning. > > So my argument in a nutshell is that the 'authorization' required to > evade liability under 1201 must logically be given to BOTH users of > licensed players and unlicensed players, or to NEITHER. If there is > authorization, there is no circumvention. If there is no circumvention, > the defendants simply do not fit within the statute. End of story. Yes. I see this as a very strong argument that the defendants fall outside the scope of the law. [ ... ] > Yes, and as I've argued, such authority comes implicitly with the > purchase price of a DVD. This is an excellent argument that defendants do not fall within the scope of the law, but authority is a nexus between two lines of attack. The other is, if the copyright holder changed the terms at point of sale, would they then have more control over authority than they do now? Would § 1201 allow copyholder to regulate private viewing? This is one of the lines of attack on the validity of the law, rather than its applicability. Because authority is never explicitly conveyed, it can be _no later_ than at sale. I just want to emphasize that this point is, I think, actually different from the point that authority cannot attach to the player. Xing license is contractual affirmation that no authority attaches to the player, and other arguments say that a change in license terms could not modify the situation. But what if under this law, conveyance of authority at sale could be restricted? That would have severe Constitutional implications. Perhaps (and I emphasize perhaps), we can follow some lines of thought to a useful attack on the law's validity. The failure of Congress to explicitly regulate the way in which copyholder can grant or deny authority under § 1201 leads to the possibility that an act of Congress will be used to violate First Amendment guarantees of insuperability of right to receive and right to speak: 1. Thus authority to private viewing cannot be contractually restricted at first sale. This reads things into the law that aren't there explicitly. 2. Authority to private viewing must convey to all at publication in order to guarantee rights under First. This isn't in the law either. 3. Congress has _no_ Constitutional power to grant exclusive right to control "authority" to access, and all such laws under copyright power are unconstitutional. Note that in the context of commerce (delivery of service like cable TV), the Congress may in fact have power to control access, but legally that is (should be?) a different ball game. 4. Congress _does_ have Constitutional power to grant exclusive right to control "authority" to access in the context of copyright clause, but the law fails to spell out necessary limitations on "authority" and is thus unconstitutionally vague/delegates too much. I believe it is arguments like this that lead to the to MPAA talking about CSS as protecting their member's exclusive right under § 106(1). This is why they keep emphasizing "generational loss," etc. even though "this isn't an infringement case." If we are going to address these Constitutional issues, we need to squarely confront the way the MPAA et al. will present "access control": it is more than simply a wedge between reading and writing, etc. it is protecting copyholders' exclusive rights under § 106 too. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:22:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27592 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:22:10 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA27562 for ; Tue, 14 Mar 2000 11:21:56 -0500 Received: from 25915 (94.10.252.64.snet.net [64.252.10.94]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id MAA16432 for ; Tue, 14 Mar 2000 12:35:14 -0500 (EST) Message-ID: <005001bf8ddb$cb2ad780$d559fea9@25915> From: "Ernest Miller" To: References: <001101bf8dcf$4e54f300$0100007f@localhost> Subject: Re: [dvd-discuss] Another DMCA Case Date: Tue, 14 Mar 2000 12:36:09 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----- Original Message ----- From: Robert Wilde To: Sent: Tuesday, March 14, 2000 11:06 AM Subject: [dvd-discuss] Another DMCA Case > The case Kelly v. Arriba Soft Corp. touched on some DMCA issues that may be > applicable here. Here's a link to the decision: > http://pub.bna.com/ptcj/99-560.htm > > And an excerpt: > "Section 1202(b)(1) does not apply to this case. Based on the language and > structure of the statute, the Court holds this provision applies only to the > removal of copyright management information on a plaintiff's product or > original work. Moreover, even if § 1202(b)(1) applied, Plaintiff has not > offered any evidence showing Defendant's actions were intentional, rather > than merely an unintended side effect of the Ditto crawler's operation." > > Robert Wilde Good research, but unfortunately, this case is not truly applicable to the DVD cases. The Kelley case is about Section 1202, which deals with copyright management information issues. The DVD cases are about Section 1201, which deals with the anti-circumvention provisions. From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:28:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28653 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:28:19 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA28650 for ; Tue, 14 Mar 2000 11:28:17 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA25201 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 11:41:34 -0600 Date: Tue, 14 Mar 2000 11:41:34 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another DMCA Case Message-ID: <20000314114134.A25179@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <001101bf8dcf$4e54f300$0100007f@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3us In-Reply-To: <001101bf8dcf$4e54f300$0100007f@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 04:06:26PM -0000, Robert Wilde wrote: > The case Kelly v. Arriba Soft Corp. touched on some DMCA issues that may be > applicable here. Here's a link to the decision: > http://pub.bna.com/ptcj/99-560.htm > > And an excerpt: > "Section 1202(b)(1) does not apply to this case. Based on the language and Sec. 1202. Integrity of copyright management information ... (b) Removal or Alteration of Copyright Management Information. - No person shall, without the authority of the copyright owner or the law - (1) intentionally remove or alter any copyright management information, where copyright management information is stuff like title, author, identifying numbers, etc. I'd say that this doesn't affect the NY, CT 1201 cases at all. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:28:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28758 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:28:42 -0500 Received: from web.turner.com (atl200.turner.com [198.81.230.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA28755 for ; Tue, 14 Mar 2000 11:28:41 -0500 Received: from mindspring.com (551p.turner.com [157.166.83.110]) by web.turner.com (8.8.8+Sun/8.8.5) with ESMTP id MAA13633 for ; Tue, 14 Mar 2000 12:42:00 -0500 (EST) Message-ID: <38CE79ED.21B3B43D@mindspring.com> Date: Tue, 14 Mar 2000 12:42:05 -0500 From: Randall Joiner X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE References: <5A8391CA2D9ED311AFAA080009D982B10B199D@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > >... > > The problem is that viewing and access are probably two > > different things. As > > Paul Fenimore pointed out (in the 2nd? post to this string, which I > > started), access as a use would more or less be a new > > interpretation of what > > a use is; furthermore, Wendy Seltzer pointed out that the copyright > > authority Nimmer says that access is like entering a house, > > and use is like > > what you do once you're in the house. Based on this it seems > > unlikely that > > we will get anywhere by arguing that access is a form of use. > > Seeing as this > > argument is unlikely to be established by precedent, it would > > be easily > > challenged by the MPAA's lawyers, just by their asking us to > > provide such a > > precedent. "Access is use? Hm, that's interesting.. Where > > does it say that?" > > Then *they* point to Nimmer, and we're cooked. > > > > Use (viewing) and access are separate things, yes. But > without access, you can not use. If they are giving permission > to use, they must be implicitly granting permission to access, no? > If use is what is done _in_ the house, one must go _in_ the house to do so. If I told someone to go get something from my house, don't I imply permission to enter my house? From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:29:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28779 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:29:18 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA28776 for ; Tue, 14 Mar 2000 11:29:16 -0500 Received: (qmail 27572 invoked by uid 500); 14 Mar 2000 17:48:09 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 17:48:09 -0000 Date: Tue, 14 Mar 2000 09:48:09 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. In-Reply-To: <002b01bf8d5f$f66532a0$d559fea9@25915> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Taken from BERNSTEIN V USDOJ: http://www.epic.org/crypto/export_controls/bernstein_decision_9_cir.html "The district court found that the Source Code was speech protected by the First Amendment" What is source code? "We begin by explaining what source code is.10 "Source code," at least as currently understood by computer program- mers, refers to the text of a program written in a "high-level" programming language, such as "PASCAL" or "C." The dis- tinguishing feature of source code is that it is meant to be read and understood by humans and that it can be used to express an idea or a method. A computer, in fact, can make no direct use of source code until it has been translated ("compiled") into a "low-level" or "machine" language, resulting in computer-executable "object code." That source code is meant for human eyes and understanding, however, does not mean that an untutored layperson can understand it. Because source code is destined for the maw of an automated, ruth- lessly literal translator -- the compiler -- a programmer must follow stringent grammatical, syntactical, formatting, and punctuation conventions. As a result, only those trained in programming can easily understand source code.11" Oki, here's the kicker. Note below "it (source code) cannot be used to control directly the functioning of a computer." What it means is DeCSS, in source code, cannot be used to circumvent access control directly. "First, it is not at all obvious that the government's view reflects a proper understanding of source code. As noted ear- lier, the distinguishing feature of source code is that it is meant to be read and understood by humans, and that it cannot be used to control directly the functioning of a com- puter. While source code, when properly prepared, can be eas- ily compiled into object code by a user, ignoring the distinction between source and object code obscures the important fact that source code is not meant solely for the computer, but is rather written in a language intended also for human analysis and understanding" From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 11:35:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30708 for dvd-discuss-outgoing; Tue, 14 Mar 2000 11:35:09 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA30642 for ; Tue, 14 Mar 2000 11:35:06 -0500 Received: from [38.32.10.23] (helo=ip23.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12UvQX-0001pv-00; Tue, 14 Mar 2000 12:48:17 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Program vs. data Date: Tue, 14 Mar 2000 17:46:57 GMT Message-ID: <38d67724.9119074@mail.tiac.net> References: <20000313170823.A20985@thud.reric.net> In-Reply-To: <20000313170823.A20985@thud.reric.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id LAA30691 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 13 Mar 2000 17:08:23 -0600, Eric Seppanen wrote: >Yet, everything I see on livid-dev is saying that the program content is >stored in the unencrypted IFO (and backup/BUP) files. True, the VOB files >contain timestamps and little flags saying "turn on macrovision" or >"allow fast-forward", but all the information I can find is indicating >that the really wild programming instructions are not stored in the VOB; >the VOB is just mildly souped-up MPEG. This has always been my understanding also. (I'm still waiting for Jim Taylor's book.) Of course, it's hard to be sure due to the closed [$5000 +NDA] nature of the DVD Video specs. The NY Memorandum order states (about DeCSS): 'Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ."4' They have assumed the data on the DVD and DeCSS as a virtual machine. Unencrypted IFO files on the DVD certainly complicate this facile description. Now, to wonder-- Why aren't the IFO files also encrypted? What would the effect on fair use be if the data was accessible, but only the program was encrypted? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 12:23:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08922 for dvd-discuss-outgoing; Tue, 14 Mar 2000 12:23:12 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA08918 for ; Tue, 14 Mar 2000 12:23:06 -0500 Received: from sympatico.ca (ppp326.on.bellglobal.com [206.172.236.134]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id NAA08208 for ; Tue, 14 Mar 2000 13:41:49 -0500 (EST) Message-ID: <38CE8873.68D52023@sympatico.ca> Date: Tue, 14 Mar 2000 13:44:03 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The "authorization" argument, revisited... References: <20000310221659.18355.qmail@hotmail.com> <38CE5957.10C6A9C2@sympatico.ca> <20000314103444.B584@localhost> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > On Tue, Mar 14, 2000 at 10:23:03AM -0500, Ian Hay wrote: > > [ ... ] > > > My argument is that such implicit authorization comes, and can come at > > no other point than, the point of sale of the DVD. Authorization is > > I would say that authorization can come _no later_ than at the point > of sale. See below. > > > implied when the consumer -pays consideration- for that DVD. The > > authorization also likely depends on consumer's agreement with the terms > > printed on the DVD itself which, recall, are limited to a copyright > > warning. > > > > So my argument in a nutshell is that the 'authorization' required to > > evade liability under 1201 must logically be given to BOTH users of > > licensed players and unlicensed players, or to NEITHER. If there is > > authorization, there is no circumvention. If there is no circumvention, > > the defendants simply do not fit within the statute. End of story. > > Yes. I see this as a very strong argument that the defendants fall > outside the scope of the law. > > [ ... ] > > > Yes, and as I've argued, such authority comes implicitly with the > > purchase price of a DVD. > > This is an excellent argument that defendants do not fall within the scope > of the law, but authority is a nexus between two lines of attack. The > other is, if the copyright holder changed the terms at point of sale, > would they then have more control over authority than they do now? Would > § 1201 allow copyholder to regulate private viewing? This is one of the > lines of attack on the validity of the law, rather than its applicability. Assuming my analysis is correct, the following could happen: the MPAA-affiliated corps could -begin- adding terms to the DVD's themselves that required use of a licensed DVD player. If this happened, I would no longer be able to use unlicensed players for -subsequent- DVDs, but the unlicensed player would still be perfectly legal for DVDs that I had already purchased: the MPAA is bound by the terms on -that- DVD, and not later ones. Thus, the "primarily", "commercial purpose other than" and "marketing" thresholds per 1201(a)(2)(A), (B), and (C) respectively would -at best- be a question of mathematics (i.e what is the proportion to pre-restriction DVDs to post-restriction DVDs), and -at worst- (for the MPAA) simply prohibits viewing those particular post-restriction DVDs with the unlicensed player, and does not legally affect the legal status of the unlicensed player itself. The next question after that is, -can- such ad hoc restrictions that apply to some DVDs in the stream of commerce and not others be supported as a valid licensing term? (This is merely a jumping off point to legal arguments that we don't have to make right now, but we may have to later.) > Because authority is never explicitly conveyed, it can be _no later_ than > at sale. I just want to emphasize that this point is, I think, actually > different from the point that authority cannot attach to the player. > Xing license is contractual affirmation that no authority attaches to > the player, and other arguments say that a change in license terms > could not modify the situation. But what if under this law, conveyance > of authority at sale could be restricted? That would have severe > Constitutional implications. Perhaps (and I emphasize perhaps), we > can follow some lines of thought to a useful attack on the law's > validity. > > The failure of Congress to explicitly regulate the way in which > copyholder can grant or deny authority under § 1201 leads to the > possibility that an act of Congress will be used to violate First > Amendment guarantees of insuperability of right to receive and right > to speak: > 1. Thus authority to private viewing cannot be contractually restricted > at first sale. This reads things into the law that aren't there explicitly. > 2. Authority to private viewing must convey to all at publication > in order to guarantee rights under First. This isn't in the law either. > 3. Congress has _no_ Constitutional power to grant exclusive right to > control "authority" to access, and all such laws under copyright power > are unconstitutional. These are very different arguments that the 'authorization' argument above - one treats 1201 as valid as it stands, and simply argues that the D's don't fall within it; the other attacks 1201 itself. We ought to argue these in separate threads. However, you are drawing an interesting thread between them, so it ought to be addressed. Clearly the factual scenario is that the net effect of 1201 is to grant -to the copyright holder- certain rights that (a) are not posited as being within the list of exclusive rights and (b) extend beyond the scope of copyright power to grant a monopoly on the licensing of a particular -device-. I.e., read as a right to the copyright holder, 1201 runs afoul of section 102(b) of Title 17, which says: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Giving a copyright holder a de facto exclusive monopoly on the licensing of any device which performs a particular function takes that protection, despite its presence within Title 17, into the realm of -patent- protection, which the copyright regime (per 102(b)) is designed NOT to overlap. 1201 grants - de facto, not de jure - patent protection without a patent. HOWEVER - I'm just not so certain that the above, while UNWISE, is unconstitutional. Your constitution (I'm Canadian, remember) appears to grant to Congress the power to make laws regarding monopoly power for a limited time on things that spread across patent and copyright. I see no -requirement- that the legal regimes set up by Congress be set up separately and distinctly as between copyright and patent. The distinction between them is a long-standing convention deep within the common law of the Anglo-American legal tradition, but it is not explicitly a -constitutional- requirement. There are other constitutional issues as applies 1201, but so far I have, and will continue to be, bluntly silent on them: I have no background in US constitutional jurisprudence, and I'm simply not qualified. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 13:01:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23570 for dvd-discuss-outgoing; Tue, 14 Mar 2000 13:01:17 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23567 for ; Tue, 14 Mar 2000 13:01:16 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id OAA06149 for ; Tue, 14 Mar 2000 14:14:32 -0500 (EST) Message-Id: <4.2.2.20000314113936.00b5e340@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 14 Mar 2000 14:14:27 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another angle the authorization argument adds a lot to is the distinction between 1201(a)(2) and 1201(b). Note that the first subsection, 1201(a)(2), bans trafficking in devices to circumvent _access_ controls, while the second, 1201(b), bans trafficking in devices to circumvent tech that "effectively protects a right of a copyright owner." The first bans lockpicks for the front door, the second bans photocopiers for works printed in blue ink. The "wedge" Paul mentions in another branch of this thread could put DeCSS _between_ the two subsections, not prohibited by either: If you get access authorization, entry by the front door, with the purchase of a DVD, or if plaintiffs can't call CSS "access control" because it locks up more than copyrighted works, then 1201(a)(2) doesn't apply. On the other side, since there are plenty of commercially significant uses for DeCSS other than copyright infringement (violations of the s. 106 rights), it's not a device principally for the circumvention of copyright controls so 1201(b) doesn't apply either. Apologies for mis-forwarding Steve's message without a subject line earlier. (majordomo thought "unscrambled" was an "unsubscribe" request! ) >From: Steve Stearns > > Well, thats not well defined. Circumvention is when the copyrighted > material > > is decrypted or unscrambled without the authority of the copyright > holder. The > > question for the MPAA to answer in front of the judge, is "how do you grant > > authority to some owners of DVDs and not others? Is the authority granted > > through licenses with the DVD-CCA through to the manufacturers of DVD > players > > and then finally to the consumer? Or is it implicitly granted to the > owner of > > the DVD either under their first sale rights, or by the message 'For home > > viewing only'?" > >Ahhhh, so if we can go into court and convince the judge that the purchase >of a DVD has the implied right to play that DVD on any DVD player >irrespective of operating system, etc, then we may have >something. Really, the access control measure for DVD's is in fact the >proprietary nature of the DVD technology itself. > >I would say this is a very reasonable and defendable argument because at >no time when somebody purchases a DVD are they specifically told what >rights they have been granted by the copyright holder. They get the usual >FBI warning saying that they are not allowed to show it publicly, etc, but >they are never told anything about CSS, etc. If you buy a videotape, or a >CD, it is implied that you can play it on any player capable of doing so, >so why is it any different with DVD? Thus the natural extension of this >is that reverse engineering CSS, was intended to establish compatibility >and to insure the implied right of playback for Linux users, etc. > >I think the MPAA's position would be much more defendable if this was DIVX >technology we were talking about. With DIVX there was a clear >establishment of the fact that you paid for each use of the disc. If you >bought the disc for $3 and then went and cracked the code that allowed you >to watch it multiple times without paying for that right, then that would >clearly be circumvention of an access control. But with DVD, you buy the >disc, and play the disc, and there is no clear rules about what you are >allowed to play it on. Great distinction. >i see an important distiction between these two technologies and how >access is controlled to the underlying information. It seems that the >definition of an access control device is overbroad, and I think that may >be a serious vulnerability in the MPAA's case. > >---Steve --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 13:11:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25204 for dvd-discuss-outgoing; Tue, 14 Mar 2000 13:11:15 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25201 for ; Tue, 14 Mar 2000 13:11:09 -0500 Received: from [38.32.10.23] (helo=ip23.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12UwvX-0002sj-00; Tue, 14 Mar 2000 14:24:23 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Tue, 14 Mar 2000 19:22:59 GMT Message-ID: <38db8ed4.15184019@mail.tiac.net> References: In-Reply-To: X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id NAA25202 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Umm we are talking about SOURCE CODE. See http://cryptome.org/dvd-mpaa-3-pi.htm specifically, 3(c) "DeCSS means any computer program, file or device that may be used to decrypt or unscramble the contents of DVDs that are protected, or otherwise to circumvent the protection afforded, by CSS and that permits the copying of the contents or any portion thereof. " Can you give me a URL for DeCSS.c? Or any source code other than css-auth? (More to the point, did these guys have the source to DeCSS posted on their sites last November?) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 13:49:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA32697 for dvd-discuss-outgoing; Tue, 14 Mar 2000 13:49:13 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA32694 for ; Tue, 14 Mar 2000 13:49:12 -0500 Received: from 216-164-129-5.s259.tnt1.lnhva.md.dialup.rcn.com ([216.164.129.5]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12UxVX-0003Y1-00 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 15:01:37 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <4.1.20000313223915.00c45f00@law.harvard.edu> References: <4.1.20000313223915.00c45f00@law.harvard.edu> Date: Tue, 14 Mar 2000 15:01:33 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Legal research guide Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >An informative FAQ on doing legal research is available at: >http://www.faqs.org/faqs/law/research/part1/ and >http://www.faqs.org/faqs/law/research/part2/ >(also ftp://rtfm.mit.edu/pub/usenet/news.answers/law/research/ ) > Wendy, is there an update for this? The faq notes that is was last updated on 11 Jun 1996, and while much of its advice probably still holds, the "internet" section is out of date. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 15:21:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15116 for dvd-discuss-outgoing; Tue, 14 Mar 2000 15:21:08 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA15111 for ; Tue, 14 Mar 2000 15:21:07 -0500 Received: (qmail 29407 invoked by uid 500); 14 Mar 2000 21:40:02 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 14 Mar 2000 21:40:02 -0000 Date: Tue, 14 Mar 2000 13:40:02 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <38db8ed4.15184019@mail.tiac.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 14 Mar 2000, Ron Gustavson wrote: > >Umm we are talking about SOURCE CODE. > > See http://cryptome.org/dvd-mpaa-3-pi.htm > specifically, 3(c) > > "DeCSS means any computer program, file or device that > may be used to decrypt or unscramble the contents of DVDs > that are protected, or otherwise to circumvent the protection > afforded, by CSS and that permits the copying of the contents > or any portion thereof. " My definition of DeCSS. DeCSS means source code for Linux users to use to study the nature of CSS. > > Can you give me a URL for DeCSS.c? Or any source code other > than css-auth? Let's talk about this exchange in private; use PGP where appropriate. Under the court order "links" are forbidden as well. I cannot say whether I have or have not DeCSS that follows 3(c), http://cryptome.org/dvd-mpaa-3-pi.htm definition . My First Amendment at this point is violated. > > (More to the point, did these guys have the source to DeCSS > posted on their sites last November?) section 2 http://newyen.com/dvd/dvd.htm "Two postings on the Internet, one dated October 6, 1999 and one dated October 25, 1999, reveal that the original access to the CSS technology was a "hack" around the license issued by Xing Technology Corporation ("Xing"). " > > > __________no-∞-do__________ > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 15:36:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17977 for dvd-discuss-outgoing; Tue, 14 Mar 2000 15:36:02 -0500 Received: from hotmail.com (law2-f265.hotmail.com [216.32.180.223]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17972 for ; Tue, 14 Mar 2000 15:36:00 -0500 Received: (qmail 76302 invoked by uid 0); 14 Mar 2000 21:48:48 -0000 Message-ID: <20000314214848.76301.qmail@hotmail.com> Received: from 205.147.249.86 by www.hotmail.com with HTTP; Tue, 14 Mar 2000 13:48:48 PST X-Originating-IP: [205.147.249.86] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Date: Tue, 14 Mar 2000 16:48:48 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >The "if sale" here is addressing the issue at a level I haven't resolved >to my own satisfaction. My post was trying to show that authority >cannot attach to the player, but must attach to the tangible copy, >and perhaps to a person. By even a cursory reading of the statute, it is clear that "authority" attaches to access. Authority is in the definition of circumvention. This is the most relevent portion of the entire statute. If authority is given to circumvent access, then that circumvention does not violate 1201(a)(2). If authority is not given, then circumvention violates. Its quite simple. >You are asking _when_ that authority is conveyed. It will either be >at publication or at first sale. This is slightly more helpful. Argument might be made that the statute is unconstitutionally vague because it does not describe how authorization to access is given by the copyright owner. If so, then there is a big stick called >Griswold that we can use to attack the "attaches to a person" theory. >The equality in your "if then" statement is more or less a result >of the Griswold v. Connecticut (1965) decision. The Supreme Court >held that for purposes of the First Amendment, speaking and listening; >writing, reading; recording and performance; must be considered >as insuperable pairs if the First is to have any real-world meaning. >Because access sits squarely between recording and performance, >Griswold seems to say it should be considered as equivalent to the >right to speak. I think your reliance on Griswold is somewhat misplaced. The thrust of Griswold is (1) that there are "penumbras" that extend from the explicitly named constitutional rights; and (2) that privacy is one of these penumbras. The "reading" part of Griswold is not necessary to the holding and is therefore dicta. By the way, this isn't the Warren Court. Good luck getting this Griswold argument past the current Supreme Court. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 15:41:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18723 for dvd-discuss-outgoing; Tue, 14 Mar 2000 15:41:08 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18720 for ; Tue, 14 Mar 2000 15:41:07 -0500 Received: from mindspring.com (user-2ivf175.dialup.mindspring.com [165.247.132.229]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with ESMTP id QAA32654 for ; Tue, 14 Mar 2000 16:54:25 -0500 (EST) Message-ID: <38CEB431.E8A5DF8B@mindspring.com> Date: Tue, 14 Mar 2000 16:50:41 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre7 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority (was Censorware reverse-engineering and DMCA) References: <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> <20000311114003.A659@localhost> <000101bf8bb9$70213ba0$c77945ce@bugbug.WinNATDomain> <4.1.20000314000053.00bd01a0@law.harvard.edu> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: > At 02:14 PM 3/13/00 -0700, fenimore@roadrunner.com wrote: > >On Sat, Mar 11, 2000 at 06:25:15PM -0600, sparky wrote: > >> Paul wrote: > >> > Yes, but why does DeCSS get classified as circumvention? I don't see > >> > how "with authority" can attach to a player device. If "authority" never > >> > attaches to a player, how can § 1201(a)(2) distinguish circumventing > >> > from non-circumventing _players_? > >> > >> It seems to me your position rests on the statements: > >> "if sale then (authority to view) = (authority to circumvent access > >> control)" > > > >The "if sale" here is addressing the issue at a level I haven't resolved > >to my own satisfaction. My post was trying to show that authority > >cannot attach to the player, but must attach to the tangible copy, > >and perhaps to a person. > > Given what we have to go by, that doesn't sound unreasonable. Ownership of > the DVD media is worthless without the right to access and view it. To make > logical or commercial sense of the purchase, we assume the buyer of a DVD > has gotten something -- the ability to make use of it -- and since private > display and viewing are not exclusive rights of the copyright holder that > need to be transferred, you also add "authority to access." You didn't > have to grant "access" rights to a book, so we're not going to find > pre-digital media examples of access authorization. > > While you could imagine a different scheme, where you were sent free DVDs > and had to pay to activate an access key, that would have to give explicit > warning that ownership of the disk did not convey rights to access. The > default, uncontradicted by the language on the jewel case, is that > authority to access comes with the disk. > > Part of the argument is for simplicity: if it's not clearly spelled out > when authority is conveyed, involve the fewest possible parties. If you > only need the copyright holder and distributor, why involve the DVD player too? One thing that bothers me about this line of argument is it only seems to let the owner of the DVD off the hook for using an unlicensed player, but not those that want to provide that player to the public. Moreover, does ownership of DVD A allow one to develop and offer to the public a circumvention to access DVD B? Or can it be said that if X is legal, then offering the means to do X is also legal? >From above are you saying that it is illegal that DVD-CCA requires that players be licensed? Does publishing a work automatically confer access authority to the public? > > > One area where we might find precedent is video games. Sega, Sony, & Co. > have long been trying to stop people from playing their game cartridges in > other players or from playing unlicensed games on their consoles. Looking > at those cases as access control cases may be useful. Wasn't it in the opinion that finding for the defendant was in part because game consoles do no enjoy the same copyright protection as movies? -Jeff From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 16:25:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA30421 for dvd-discuss-outgoing; Tue, 14 Mar 2000 16:25:08 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA30417 for ; Tue, 14 Mar 2000 16:25:07 -0500 Received: (qmail 26101 invoked by uid 60001); 14 Mar 2000 22:38:26 -0000 Message-ID: <20000314223826.26100.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Tue, 14 Mar 2000 14:38:26 PST Date: Tue, 14 Mar 2000 14:38:26 -0800 (PST) From: Bryan Taylor Subject: RE: [dvd-discuss] Fair Access (Was: ACCESS as USE) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hey everybody, I'm back from my vacation. I've even waded through most of the 226 posts that happened while I was gone. --- "Jeanne A. E. DeVoto" wrote: > At 10:42 AM -0800 3/13/2000, sparky wrote: > >The problem is that viewing and access are probably two different > >things. As Paul Fenimore pointed out (in the 2nd? post to this > >string, which I started), access as a use would more or less be > >a new interpretation of what a use is; furthermore, Wendy Seltzer > >pointed out that the copyright authority Nimmer says that access > >is like entering a house, and use is like what you do once you're > >in the house. Based on this it seems unlikely that we will get > >anywhere by arguing that access is a form of use. > > No. But one can make the argument that: > > 1) Access is a prerequisite for use. (Nimmer's analogy backs this > position.) > 2) Blocking access renders fair use moot, since you can't make a > fair use of it if you can't access it. > 3) Therefore, circumventing access blocks for the purpose of > making a fair use ought to inherit the same legal protection as > fair use itself does. There is a common-law copyright principle called the "merger doctrine" that is necessary to satisfy first amendment demands. It does NOT directly apply here, but perhaps it's reasoning does. The merger doctrine was stated as follows by the 2nd Circuit Court of Appeals in the case KREGOS V. AP, 937 F.2d 700 (2d Cir. 1991). "B. Idea/Expression Merger. The fundamental copyright principle that only the expression of an idea and not the idea itself is protectable, see Mazer v. Stein, 347 U.S. 201, 217, 98 L. Ed. 630, 74 S. Ct. 460 (1954), has produced a corollary maxim that even expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself." I believe that this reasoning should be applied when access control blocks fair use. If access control would effectively protect the work from fair use, then fair use must prevail, as a child of the First Amendment. When the bounds of copyright infringement were originally tested in commonlaw courts, limitations on copyright infringement that became known as "fair use" were found. These "judge-made" principles (ie Constitutional principles) eventually were restated by Congress in 17 USC 107 as "fair use". Only the exclusive rights of the copyright holder are statutory, those of the user need not be and often are not statutory. Many have argued that "fair use" does not apply here because access control circumvention and circumvention tool trafficking are de novo offenses not in the scope of those excepted by section 107. However, the new access control laws of the DMCA should submit to First Amendment limitations as well and thereby a de novo "fair access" defense should be recognized. I am using the term "Fair Access" to give a name to this concept. "Fair Access" is to access control as "fair use" is to copyright infringement. I think what many people arguing that DeCSS is "fair use" actually mean is that 1) "Fair Access" must exist and 2) DeCSS is "Fair Access". __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 16:43:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05743 for dvd-discuss-outgoing; Tue, 14 Mar 2000 16:43:57 -0500 Received: from tomts3-srv.bellnexxia.net (tomts3.bellnexxia.net [209.226.175.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA05740 for ; Tue, 14 Mar 2000 16:43:56 -0500 Received: from sympatico.ca ([206.172.197.37]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000314225644.DJXP3031.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Tue, 14 Mar 2000 17:56:44 -0500 Message-ID: <38CEC57A.23F12E22@sympatico.ca> Date: Tue, 14 Mar 2000 18:04:26 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent, you are simply clueless. Kent Nguyen wrote: > > On Tue, 14 Mar 2000, Ron Gustavson wrote: > > "DeCSS means any computer program, file or device that > > may be used to decrypt or unscramble the contents of DVDs > > that are protected, or otherwise to circumvent the protection > > afforded, by CSS and that permits the copying of the contents > > or any portion thereof. " > My definition of DeCSS. > DeCSS means source code for Linux users to use to study the nature of CSS. I see. So, the COURT has one definition, but you don't like it, so you have replaced it with another. Good strategy. Very helpful. Thanks. > > > > Can you give me a URL for DeCSS.c? Or any source code other > > than css-auth? > Let's talk about this exchange in private; use PGP where > appropriate. Under the court order "links" are forbidden as well. Actually, you are exactly wrong. The California court in the DVD-CCA trade secret case explicitly stated that the injunction did NOT apply to links. It should also be pointed out that you, yourself, have the text of this decision REPRODUCED ON YOUR WEB PAGE. Further, the New York DMCA ruling can, in my reading at least, in no way be construed as enjoining linking. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 16:52:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11313 for dvd-discuss-outgoing; Tue, 14 Mar 2000 16:52:42 -0500 Received: from hotmail.com (law2-f74.hotmail.com [216.32.181.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA11310 for ; Tue, 14 Mar 2000 16:52:42 -0500 Received: (qmail 26788 invoked by uid 0); 14 Mar 2000 23:05:31 -0000 Message-ID: <20000314230531.26787.qmail@hotmail.com> Received: from 205.147.249.86 by www.hotmail.com with HTTP; Tue, 14 Mar 2000 15:05:31 PST X-Originating-IP: [205.147.249.86] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Date: Tue, 14 Mar 2000 18:05:31 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Wendy Seltzer >Another angle the authorization argument adds a lot to is the distinction >between 1201(a)(2) and 1201(b). Note that the first subsection, >1201(a)(2), bans trafficking in devices to circumvent _access_ controls, >while the second, 1201(b), bans trafficking in devices to circumvent tech >that "effectively protects a right of a copyright owner." The first bans >lockpicks for the front door, the second bans photocopiers for works >printed in blue ink. > >The "wedge" Paul mentions in another branch of this thread could put DeCSS >_between_ the two subsections, not prohibited by either: > >If you get access authorization, entry by the front door, with the purchase >of a DVD, or if plaintiffs can't call CSS "access control" because it locks >up more than copyrighted works, then 1201(a)(2) doesn't apply. > >On the other side, since there are plenty of commercially significant uses >for DeCSS other than copyright infringement (violations of the s. 106 >rights), it's not a device principally for the circumvention of copyright >controls so 1201(b) doesn't apply either. Just a practical question here. If sale=authorization, then why does CSS exist? ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:06:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14112 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:06:18 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14054 for ; Tue, 14 Mar 2000 17:06:17 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA12801 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 15:16:57 -0800 Date: Tue, 14 Mar 2000 15:16:57 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314151657.L13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000314230531.26787.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000314230531.26787.qmail@hotmail.com>; from jadaub@hotmail.com on Tue, Mar 14, 2000 at 06:05:31PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > >From: Wendy Seltzer > > >Another angle the authorization argument adds a lot to is the distinction > >between 1201(a)(2) and 1201(b). Note that the first subsection, > >1201(a)(2), bans trafficking in devices to circumvent _access_ controls, > >while the second, 1201(b), bans trafficking in devices to circumvent tech > >that "effectively protects a right of a copyright owner." The first bans > >lockpicks for the front door, the second bans photocopiers for works > >printed in blue ink. > > > >The "wedge" Paul mentions in another branch of this thread could put DeCSS > >_between_ the two subsections, not prohibited by either: > > > >If you get access authorization, entry by the front door, with the purchase > >of a DVD, or if plaintiffs can't call CSS "access control" because it locks > >up more than copyrighted works, then 1201(a)(2) doesn't apply. > > > >On the other side, since there are plenty of commercially significant uses > >for DeCSS other than copyright infringement (violations of the s. 106 > >rights), it's not a device principally for the circumvention of copyright > >controls so 1201(b) doesn't apply either. > > Just a practical question here. If sale=authorization, then why does CSS > exist? It was said "to keep honest people honest"; "to deter casual piracy". Cynical observers add: "to provide a way or two to sue people who produce software or hardware which interoperates with DVDs without executing the CSS license agreement". None of these intentions would be inconsistent with the idea that sale included implicit authorization to "access", "view", "use", "decrypt", or any other legal theory -- because CSS might still deter casual piracy and might still be used as a means to force people to sign NDAs and license agreements. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:08:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14445 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:08:35 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14442 for ; Tue, 14 Mar 2000 17:08:35 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id SAA00865 for ; Tue, 14 Mar 2000 18:21:54 -0500 (EST) Message-Id: <4.2.2.20000314181347.00b58420@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 14 Mar 2000 18:21:51 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction In-Reply-To: <20000314230531.26787.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 06:05 PM 3/14/00 -0500, jadaub@hotmail.com wrote: > >From: Wendy Seltzer > > >Another angle the authorization argument adds a lot to is the distinction > >between 1201(a)(2) and 1201(b). Note that the first subsection, > >1201(a)(2), bans trafficking in devices to circumvent _access_ controls, > >while the second, 1201(b), bans trafficking in devices to circumvent tech > >that "effectively protects a right of a copyright owner." The first bans > >lockpicks for the front door, the second bans photocopiers for works > >printed in blue ink. > > > >The "wedge" Paul mentions in another branch of this thread could put DeCSS > >_between_ the two subsections, not prohibited by either: > > > >If you get access authorization, entry by the front door, with the purchase > >of a DVD, or if plaintiffs can't call CSS "access control" because it locks > >up more than copyrighted works, then 1201(a)(2) doesn't apply. > > > >On the other side, since there are plenty of commercially significant uses > >for DeCSS other than copyright infringement (violations of the s. 106 > >rights), it's not a device principally for the circumvention of copyright > >controls so 1201(b) doesn't apply either. > >Just a practical question here. If sale=authorization, then why does CSS >exist? CSS could be only a copy-control device, not access-control. Copyright owners could be overreaching -- they want CSS to control access, but they'd also like to prevent you from making even fair use excerpts from their work. This line of argument works with the law as written, but says that copyright holders can't stretch the law even further to create their own definitions and rights just because the technology would allow them to. (or the argument could be wrong...) --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:23:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18448 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:23:16 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA18438 for ; Tue, 14 Mar 2000 17:23:15 -0500 Received: from 25915 (92.2.252.64.snet.net [64.252.2.92]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id SAA07354 for ; Tue, 14 Mar 2000 18:36:34 -0500 (EST) Message-ID: <001f01bf8e0e$44e1d380$d559fea9@25915> From: "Ernest Miller" To: References: <20000314230531.26787.qmail@hotmail.com> Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Date: Tue, 14 Mar 2000 18:37:32 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Copy protection...but, more likely, region coding, forced previews, and control of the player market... ----- Original Message ----- From: Joshua Daub To: Sent: Tuesday, March 14, 2000 6:05 PM Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction > Just a practical question here. If sale=authorization, then why does CSS > exist? From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:23:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18917 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:23:58 -0500 Received: from hotmail.com (f237.law8.hotmail.com [216.33.241.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA18914 for ; Tue, 14 Mar 2000 17:23:57 -0500 Received: (qmail 55310 invoked by uid 0); 14 Mar 2000 23:36:47 -0000 Message-ID: <20000314233647.55309.qmail@hotmail.com> Received: from 208.41.124.60 by www.hotmail.com with HTTP; Tue, 14 Mar 2000 15:36:46 PST X-Originating-IP: [208.41.124.60] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Tue, 14 Mar 2000 23:36:46 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If you want a link to the source code, the DVD-CCA lawyers actually posted the code to the public. Check out this Wired article about it. http://www.wired.com/news/politics/0,1283,33922,00.html I find it quite amusing that those lawyers would let this happen. Maybe they do believe in open source. Or maybe they should be added to the list of defendants. Hmm. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:32:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21218 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:32:53 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA21215 for ; Tue, 14 Mar 2000 17:32:51 -0500 Received: (qmail 21834 invoked by uid 502); 14 Mar 2000 23:48:29 -0000 Date: Tue, 14 Mar 2000 18:48:29 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000314184829.F18949@linuxpower.org> References: <20000314233647.55309.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000314233647.55309.qmail@hotmail.com>; from Richard Ramos on Tue, Mar 14, 2000 at 11:36:46PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 11:36:46PM +0000, Richard Ramos wrote: > If you want a link to the source code, the DVD-CCA lawyers actually posted > the code to the public. Check out this Wired article about it. > > http://www.wired.com/news/politics/0,1283,33922,00.html > > I find it quite amusing that those lawyers would let this happen. Maybe > they do believe in open source. Or maybe they should be added to the list > of defendants. Hmm. This is actually very old news. About two weeks later, these records were sealed by court order in California. It should also be mentioned that this was part of the reply declaration of John Hoy (President of the DVD CCA) to the granting of an injunction in the trade secret case on January 18th. This document is in no way directly relevant to any of the DMCA/1201 proceedings in New York. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:42:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23006 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:42:15 -0500 Received: from tisch.mail.mindspring.net (tisch.mail.mindspring.net [207.69.200.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23003 for ; Tue, 14 Mar 2000 17:42:11 -0500 Received: from mindspring.com (user-2ivf54k.dialup.mindspring.com [165.247.148.148]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with ESMTP id SAA13090 for ; Tue, 14 Mar 2000 18:55:31 -0500 (EST) Message-ID: <38CED092.1DECAEAF@mindspring.com> Date: Tue, 14 Mar 2000 18:51:46 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fair Access (Was: ACCESS as USE) References: <20000314223826.26100.qmail@web502.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > Many have argued that "fair use" does not apply here because access > control circumvention and circumvention tool trafficking are de novo > offenses not in the scope of those excepted by section 107. However, > the new access control laws of the DMCA should submit to First > Amendment limitations as well and thereby a de novo "fair access" > defense should be recognized. > > I am using the term "Fair Access" to give a name to this concept. "Fair > Access" is to access control as "fair use" is to copyright > infringement. I think what many people arguing that DeCSS is "fair use" > actually mean is that 1) "Fair Access" must exist and 2) DeCSS is "Fair Access". >From what I was reading in the discussion there are different kinds of use of a work, but only one kind of access (Nimmer). Are you saying instead that there should be different kinds of access too? If true then could it be argued that there is access to view and access to copy. Accessing to view being fair given the economic impact test while access to copy is arguable. But since is can be further argued that CSS does not effectively protect access for copy, then 1201(a) does not apply in that case. So we are only left with the fair access for view. Lot's of if's. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:45:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23890 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:45:57 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA23887 for ; Tue, 14 Mar 2000 17:45:56 -0500 Received: (qmail 21957 invoked by uid 502); 15 Mar 2000 00:01:34 -0000 Date: Tue, 14 Mar 2000 19:01:34 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314190134.G18949@linuxpower.org> References: <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <001f01bf8e0e$44e1d380$d559fea9@25915>; from Ernest Miller on Tue, Mar 14, 2000 at 06:37:32PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 06:37:32PM -0500, Ernest Miller wrote: > Copy protection...but, more likely, region coding, forced previews, > and control of the player market... Sorry, but region coding and CSS are not analogous. They are completely distinct mechanisms; they don't really have anything to do with each other. Rob Warren greslin@linuxpower.org www.iag.net/~aleris > > ----- Original Message ----- > From: Joshua Daub > To: > Sent: Tuesday, March 14, 2000 6:05 PM > Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) > distinction > > > > > > Just a practical question here. If sale=authorization, then why > does CSS > > exist? > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:46:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24002 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:46:13 -0500 Received: from dial151.roadrunner.com (dial151.cybermesa.com [209.12.75.151]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23997 for ; Tue, 14 Mar 2000 17:46:11 -0500 Received: (from paul@localhost) by dial151.roadrunner.com (8.8.7/8.8.7) id RAA02064 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:02:41 -0700 Date: Tue, 14 Mar 2000 17:02:40 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Censorware reverse-engineering and DMCA Message-ID: <20000314170239.A1954@localhost> References: <20000314214848.76301.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000314214848.76301.qmail@hotmail.com>; from jadaub@hotmail.com on Tue, Mar 14, 2000 at 04:48:48PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 04:48:48PM -0500, Joshua Daub wrote: [ ... ] > This is slightly more helpful. [ ... ] Hmmm. Would you please post the citation to your review article? Once I get a copy of it, I can avoid this slow process of (re-)discovering what may already be written someplace else. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:54:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26399 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:54:31 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA26395 for ; Tue, 14 Mar 2000 17:54:29 -0500 Received: (qmail 13920 invoked by uid 60001); 15 Mar 2000 00:07:48 -0000 Message-ID: <20000315000748.13919.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Tue, 14 Mar 2000 16:07:48 PST Date: Tue, 14 Mar 2000 16:07:48 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] ACCESS as USE To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > The "it's a Windows app because Linux couldn't use Micro-UDF at the > time" was a story that came out with the Johansen interviews, when > heat started being applied to the people involved. It sounds good > to the press, but so far there doesn't seem to be any evidence > that this is in fact true. Johansen's interview itself is evidence. He is the most knowledgable regarding his own intentions. Unless there is some countering evidence it should carry the point. You seem to be assuming that Johansen cannot be trusted, but I'm not aware of anything specific to impeach him with. His explaination is certainly plausible, and the UDF linux support situation is accurate. The fact that he was reading and posting to the livid-dev mailing list, bolsters his linux explaination. He may not have been in the livid-dev "mainstream", or even popular there, but that is not germane. He doesn't have to be an open source guru to be telling the truth. By the way, Johansen was questioned and released after he cooperated with the authorities. To my knowledge, no charges have been ever been filed, despite all the huffing and puffing from the MPAA. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 17:57:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27080 for dvd-discuss-outgoing; Tue, 14 Mar 2000 17:57:41 -0500 Received: from dial115.roadrunner.com (dial115.cybermesa.com [209.12.75.115]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA27077 for ; Tue, 14 Mar 2000 17:57:35 -0500 Received: (from paul@localhost) by dial115.roadrunner.com (8.8.7/8.8.7) id RAA02243 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:14:12 -0700 Date: Tue, 14 Mar 2000 17:14:11 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fair Access (Was: ACCESS as USE) Message-ID: <20000314171411.A2105@localhost> References: <20000314223826.26100.qmail@web502.mail.yahoo.com> <38CED092.1DECAEAF@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <38CED092.1DECAEAF@mindspring.com>; from jeff-w@mindspring.com on Tue, Mar 14, 2000 at 06:51:46PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 06:51:46PM -0500, Jeff Waller wrote: [ ... ] > But since is can be further argued that CSS does not effectively > protect access for copy, [ ... ] § 17 U.S.C. 1201(a)(3)(A): + (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 Access is doing these things with the authority of the copyright holder. Access == descramble, decrypt, etc. with authority. No descrambling is necessary to copy. -> Copying is not access as used in § 1201. "Access" in the colloquial sense is not exactly what § 1201 is talking about. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:02:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28467 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:02:49 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28464 for ; Tue, 14 Mar 2000 18:02:49 -0500 Received: from 208-58-193-95.s349.tnt9.lnhva.md.dialup.rcn.com ([208.58.193.95]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12V1T0-0006SY-00 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 19:15:15 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu (Unverified) Message-Id: In-Reply-To: <4.1.20000313223915.00c45f00@law.harvard.edu> References: <4.1.20000313223915.00c45f00@law.harvard.edu> Date: Tue, 14 Mar 2000 15:01:33 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Legal research guide Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >An informative FAQ on doing legal research is available at: >http://www.faqs.org/faqs/law/research/part1/ and >http://www.faqs.org/faqs/law/research/part2/ >(also ftp://rtfm.mit.edu/pub/usenet/news.answers/law/research/ ) > Wendy, is there an update for this? The faq notes that is was last updated on 11 Jun 1996, and while much of its advice probably still holds, the "internet" section is out of date. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:06:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29181 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:06:34 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA29178 for ; Tue, 14 Mar 2000 18:06:33 -0500 Received: from [38.32.10.110] (helo=ip110.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12V1XU-0000dj-00; Tue, 14 Mar 2000 19:19:53 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVD logo Date: Wed, 15 Mar 2000 00:18:18 GMT Message-ID: <38ded2b3.32561609@mail.tiac.net> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id SAA29179 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In one thread I asked "How do I know if my DVD player is authorized? What about the hapless consumer?" It must be the logo. Here's the logo license: http://www.dvdforum.com/format.htm Are there other logo-bearing products where purchase of a box with the logo might carry some sort of implicit agreement? Does this sound like something to investigate? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:12:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30291 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:12:37 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA30288 for ; Tue, 14 Mar 2000 18:12:36 -0500 Received: (qmail 30961 invoked by uid 500); 15 Mar 2000 00:31:31 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 15 Mar 2000 00:31:31 -0000 Date: Tue, 14 Mar 2000 16:31:31 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction In-Reply-To: <20000314230531.26787.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 14 Mar 2000, Joshua Daub wrote: > > > >From: Wendy Seltzer > > >Another angle the authorization argument adds a lot to is the distinction > >between 1201(a)(2) and 1201(b). Note that the first subsection, > >1201(a)(2), bans trafficking in devices to circumvent _access_ controls, > >while the second, 1201(b), bans trafficking in devices to circumvent tech > >that "effectively protects a right of a copyright owner." The first bans > >lockpicks for the front door, the second bans photocopiers for works > >printed in blue ink. > > > >The "wedge" Paul mentions in another branch of this thread could put DeCSS > >_between_ the two subsections, not prohibited by either: > > > >If you get access authorization, entry by the front door, with the purchase > >of a DVD, or if plaintiffs can't call CSS "access control" because it locks > >up more than copyrighted works, then 1201(a)(2) doesn't apply. > > > >On the other side, since there are plenty of commercially significant uses > >for DeCSS other than copyright infringement (violations of the s. 106 > >rights), it's not a device principally for the circumvention of copyright > >controls so 1201(b) doesn't apply either. > > Just a practical question here. If sale=authorization, then why does CSS > exist? What I think the MPAA is trying to do is to fit more than 1 movie and some tidbits of secret into a DVD. Without proper "private key" technology the media you have can only allowed you the fair access to view one movie. If you wish to view another, you have to buy a separate private key to view the second movie in the same purchased DVD. This is not however explicity, but an implicit statement the MPAA tries to convey to the judge. What we are now facing is the idea of renting copyrighted material. The whole purpose of licensed keys is thus. So the next question is, we are authorized to "fair access" to the movie marketed on the cover. However are we authorized to view the other movies and secrets in the DVD that are not marketed on the cover? Our purchase of the DVD movie is the DVD media plus the content advertised. > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:19:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05217 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:19:34 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA05214 for ; Tue, 14 Mar 2000 18:19:30 -0500 Received: (qmail 22272 invoked by uid 502); 15 Mar 2000 00:35:03 -0000 Date: Tue, 14 Mar 2000 19:35:03 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000314193503.H18949@linuxpower.org> References: <20000315000748.13919.qmail@web504.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000315000748.13919.qmail@web504.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 14, 2000 at 04:07:48PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 04:07:48PM -0800, Bryan Taylor wrote: > > > --- greslin@linuxpower.org wrote: > > The "it's a Windows app because Linux couldn't use Micro-UDF at the > > time" was a story that came out with the Johansen interviews, when > > heat started being applied to the people involved. It sounds good > > to the press, but so far there doesn't seem to be any evidence > > that this is in fact true. > > Johansen's interview itself is evidence. He is the most knowledgable > regarding his own intentions. Unless there is some countering evidence > it should carry the point. Unfortunately, the livid-dev archives make it a little bit fuzzy. Now if Derek Fawcus were willing to come out and agree with everything Jon said, I would agree with this. We've already been over this, so I'm not going to get into it again other than to say - again - that Jon had every motivation to be less than truthful in those interviews. I'm not saying he lied. I'm saying that to simply take those interviews on faith is to be more than a bit naive about how people work. > > You seem to be assuming that Johansen cannot be trusted, but I'm not > aware of anything specific to impeach him with. His explaination is > certainly plausible, and the UDF linux support situation is accurate. > The fact that he was reading and posting to the livid-dev mailing list, > bolsters his linux explaination. I try to make it a point not to question someone's honor, and I'm not questioning Jon's. I am *not* assuming that Jon can't be trusted. You, however, are assuming that he *can* be. It's wiser to not make either assumption and instead make a judgement call based on the evidence. So far that evidence includes the livid-dev archives (which certainly seems to indicate that it was more a FreeBSD deal than a Linux one) and the Johansen interviews; the Johansen interviews took place *after* Jon's problems with the police. He had absolutely every motivation to be less than completely truthful about the intentions behind DeCSS. What we need is the testimony of Derek Fawcus. I don't recall offhand; did he make a deposition for the CA case? I know Frank Stevenson did. > He may not have been in the livid-dev "mainstream", or even popular > there, but that is not germane. He doesn't have to be an open source > guru to be telling the truth. But if he wasn't directly participating in livid-dev, that's evidence against the idea that DeCSS was developed as part of LiViD. We have no real way of knowing whether Jon was telling the truth; that's why we need evidence to support it, beyond simply Jon's press testimony. Now, if Jon were willing to actually stand in court and testify to the above, it becomes evidence. That way, if other evidence disproves what he is saying, there are legal consequences. Of course, Jon not being an American, that would be a bit tricky. > By the way, Johansen was questioned and released after he cooperated > with the authorities. To my knowledge, no charges have been ever been > filed, despite all the huffing and puffing from the MPAA. As far as I know, you're correct. But let's be honest for a second. At the time of the interview, what do you really think his mental state was? What would *yours* be? He would either be deeply scared or he would be a complete fool. I have a friend in Norway, and heard a lot about the Norwegian response to the Johansen interrogation. He got a lot of public support, and most of it was wrapped around the idea that he did this selfless act, giving a program to the Linux users of the world - oh, so altruistic - and now was being hassled by The Man. There was also a major "Americans coming over and picking on us" thread to it all. If Jon's motives were not as altruistic as believed, exactly how much motivation do you think he would have to admit it? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:22:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA06190 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:22:58 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA06170 for ; Tue, 14 Mar 2000 18:22:57 -0500 Received: (qmail 31037 invoked by uid 500); 15 Mar 2000 00:41:52 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 15 Mar 2000 00:41:52 -0000 Date: Tue, 14 Mar 2000 16:41:52 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <38CEC57A.23F12E22@sympatico.ca> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 14 Mar 2000, Ian Hay wrote: > Kent, you are simply clueless. > > Kent Nguyen wrote: > > > > On Tue, 14 Mar 2000, Ron Gustavson wrote: > > > > "DeCSS means any computer program, file or device that > > > may be used to decrypt or unscramble the contents of DVDs > > > that are protected, or otherwise to circumvent the protection > > > afforded, by CSS and that permits the copying of the contents > > > or any portion thereof. " > > My definition of DeCSS. > > DeCSS means source code for Linux users to use to study the nature of CSS. > > I see. So, the COURT has one definition, but you don't like it, so you > have replaced it with another. Good strategy. Very helpful. Thanks. It is necessary when in course the court does not understand the technical understanding in the matter be explained or corrected. Unfortunately Kaplan muted the defendant several times while trying to explain to the court. When the court shows a lack of respect to reason and explanation, it is within the power of the people to replace the judge in question. > > > > > > > Can you give me a URL for DeCSS.c? Or any source code other > > > than css-auth? > > Let's talk about this exchange in private; use PGP where > > appropriate. Under the court order "links" are forbidden as well. > > Actually, you are exactly wrong. The California court in the DVD-CCA > trade secret case explicitly stated that the injunction did NOT apply to > links. It should also be pointed out that you, yourself, have the text > of this decision REPRODUCED ON YOUR WEB PAGE. Further, the New York > DMCA ruling can, in my reading at least, in no way be construed as > enjoining linking. The decision was divided. The restricted takes precedent. > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:46:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12027 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:46:28 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA12024 for ; Tue, 14 Mar 2000 18:46:27 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id RAA01020 for ; Tue, 14 Mar 2000 17:00:01 -0800 (PST) Message-ID: <38CEE034.F248CE51@cdpage.com> Date: Tue, 14 Mar 2000 17:58:28 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: <20000314230531.26787.qmail@hotmail.com> <20000314151657.L13379@cty-alum.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen wrote: > It was said "to keep honest people honest"; "to deter casual piracy". Picking nits - it was always acknowledged that CSS was no deterrent to piracy. The language used was that idiotic "keep honest people honest" but also to deter "casual copying". Which, BTW, is not illegal. -- Dana J. Parker From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:56:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA14786 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:56:37 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA14783 for ; Tue, 14 Mar 2000 18:56:37 -0500 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA17873 for ; Tue, 14 Mar 2000 19:09:54 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] ACCESS as USE Date: Tue, 14 Mar 2000 19:08:56 -0600 Message-ID: <000601bf8e1b$09a172a0$fe7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <38CE79ED.21B3B43D@mindspring.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Randall wrote: > > Richard Hartman wrote: > > > > > -----Original Message----- > > > From: sparky [mailto:sparky@suba.com] > > >... > > > The problem is that viewing and access are probably two > > > different things. As > > > Paul Fenimore pointed out (in the 2nd? post to this string, which I > > > started), access as a use would more or less be a new > > > interpretation of what > > > a use is; furthermore, Wendy Seltzer pointed out that the copyright > > > authority Nimmer says that access is like entering a house, > > > and use is like > > > what you do once you're in the house. Based on this it seems > > > unlikely that > > > we will get anywhere by arguing that access is a form of use. > > > Seeing as this > > > argument is unlikely to be established by precedent, it would > > > be easily > > > challenged by the MPAA's lawyers, just by their asking us to > > > provide such a > > > precedent. "Access is use? Hm, that's interesting.. Where > > > does it say that?" > > > Then *they* point to Nimmer, and we're cooked. > > > > > > > Use (viewing) and access are separate things, yes. But > > without access, you can not use. If they are giving permission > > to use, they must be implicitly granting permission to access, no? > > > > > If use is what is done _in_ the house, one must go _in_ the house to do > so. > > If I told someone to go get something from my house, don't I imply > permission to enter my house? Yes, but you have not given him permission to copy your keys or otherwise circumvent whatever means he may have put in place to restrict access to the house. Also, just as an aside, a better analogy to the DVD situation would be if you sold your house to someone, not asked someone to get them something inside it. The latter would be more similar to cable, you are allowed to go in for a specific purpose, and for a limited time. I don't think we're really arguing here. You and Richard are stating more or less that the act of sale, in one way or another, signifies permission to access. My caveats (which in the above may sound like I'm arguing *for* the MPAA) mainly are about the way to argue that, specifically, that it should not be argued in a way that likens access to use, though that was where I started. > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 18:58:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15059 for dvd-discuss-outgoing; Tue, 14 Mar 2000 18:58:11 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA15053 for ; Tue, 14 Mar 2000 18:58:08 -0500 Received: (qmail 22515 invoked by uid 502); 15 Mar 2000 01:13:43 -0000 Date: Tue, 14 Mar 2000 20:13:43 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314201343.K18949@linuxpower.org> References: <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000314190134.G18949@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 14, 2000 at 07:01:34PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 07:01:34PM -0500, greslin@linuxpower.org wrote: > On Tue, Mar 14, 2000 at 06:37:32PM -0500, Ernest Miller wrote: > > Copy protection...but, more likely, region coding, forced previews, > > and control of the player market... > > Sorry, but region coding and CSS are not analogous. They are completely > distinct mechanisms; they don't really have anything to do with each > other. I should amend this. On a technological level, CSS and region coding are not analogous. On a licensing level, the current CSS license requires that region coding is in effect. I apologize for any misunderstanding. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:02:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA15942 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:02:09 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA15930 for ; Tue, 14 Mar 2000 19:02:07 -0500 Received: (qmail 13009 invoked by uid 60001); 15 Mar 2000 01:15:24 -0000 Message-ID: <20000315011524.13008.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Tue, 14 Mar 2000 17:15:24 PST Date: Tue, 14 Mar 2000 17:15:24 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] First Amendment. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > Only if you're challenging the law, in which case you need to realize > that you're challenging an act of Congress. That means it has to go > to the Supreme Court; a local functionary like Kaplan doesn't have the > authority to overturn an act of Congress. > > Otherwise, you end up going into court saying "Yes, we broke the law, > but the law is a violation of the First Amendment!" and the court > replies, "So? Take it up with the Supreme Court and Congress. Court > finds against the defendent." Rob, this is just wrong. District judges can and do strike down acts of Congress, as do Circuit Courts. The scope of a distric court ruling is very limited and doesn't set much binding precedent for other courts. The circuit courts only review appealed rulings of law, but DO set binding precedent for their circuit. One circuit court can strike down a law that another has explicitly allowed. This usually motivates the Supreme Court to hear the case to resolve the conflict, though even then they might choose not to. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:08:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17556 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:08:38 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17553 for ; Tue, 14 Mar 2000 19:08:37 -0500 Received: from mindspring.com (user-2ivf8id.dialup.mindspring.com [165.247.162.77]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with ESMTP id UAA17081 for ; Tue, 14 Mar 2000 20:21:57 -0500 (EST) Message-ID: <38CEE4D5.174B113E@mindspring.com> Date: Tue, 14 Mar 2000 20:18:13 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fair Access (Was: ACCESS as USE) References: <20000314223826.26100.qmail@web502.mail.yahoo.com> <38CED092.1DECAEAF@mindspring.com> <20000314171411.A2105@localhost> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > On Tue, Mar 14, 2000 at 06:51:46PM -0500, Jeff Waller wrote: > [ ... ] > > But since is can be further argued that CSS does not effectively > > protect access for copy, > [ ... ] > > § 17 U.S.C. 1201(a)(3)(A): > > + (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 > > Access is doing these things with the authority of the copyright holder. > > Access == descramble, decrypt, etc. with authority. > > No descrambling is necessary to copy. > > -> Copying is not access as used in § 1201. > > "Access" in the colloquial sense is not exactly what § 1201 is talking > about. Hmm, that's all access is? The act of unencrypting with authority? While circumventing is unencrypting without authority? Well from a technological viewpoint that's problematic because DeCSS could be used to circumvent both fairly (watch a movie we say) and unfairly (removing the copyright information) since all it does is circumvent, and would have to be inextricably combined with something else to circumvent fairly only and if provided as source code, that's not possible. But from a software methodology viewpoint (open-source especially) it's not very useful unless groups can contribute sourcecode components. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:09:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17765 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:09:44 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17762 for ; Tue, 14 Mar 2000 19:09:43 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA13014 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:20:23 -0800 Date: Tue, 14 Mar 2000 17:20:22 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314172022.O13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000314230531.26787.qmail@hotmail.com> <20000314151657.L13379@cty-alum.org> <38CEE034.F248CE51@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <38CEE034.F248CE51@cdpage.com>; from dparker@cdpage.com on Tue, Mar 14, 2000 at 05:58:28PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dana Parker writes: > Seth David Schoen wrote: > > > It was said "to keep honest people honest"; "to deter casual piracy". > > Picking nits - > > it was always acknowledged that CSS was no deterrent to piracy. The language used > was that idiotic "keep honest people honest" but also to deter "casual copying". > Which, BTW, is not illegal. I thought I heard "casual piracy", not "casual copying", but it might be a case of very selective memory. You are correct all around. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:10:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18024 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:10:54 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18021 for ; Tue, 14 Mar 2000 19:10:53 -0500 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA18283 for ; Tue, 14 Mar 2000 19:24:06 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Fair Access (Was: ACCESS as USE) Date: Tue, 14 Mar 2000 19:23:09 -0600 Message-ID: <000701bf8e1d$06381e00$fe7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <38CED092.1DECAEAF@mindspring.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeff Waller wrote: > If true then could it be argued that there is access to view and access to > copy. Accessing to view being fair given the economic impact test while > access to copy is arguable. In fact you are allowed to make a single copy for archival purposes of copyrighted works that you own. (This fair use is actually one that libraries heavily rely on.) You are also allowed to copy works into other formats, e.g. audio tapes to mp3s. sparky But since is can be further argued that > CSS does not effectively protect access for copy, then 1201(a) does > not apply in that case. So we are only left with the fair access > for view. > > Lot's of if's. > > -Jeff > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:15:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19028 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:15:19 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19025 for ; Tue, 14 Mar 2000 19:15:17 -0500 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA18474 for ; Tue, 14 Mar 2000 19:28:35 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Fair Access (Was: ACCESS as USE) Date: Tue, 14 Mar 2000 19:27:38 -0600 Message-ID: <000801bf8e1d$a6607bc0$fe7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000314223826.26100.qmail@web502.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan wrote: > > Hey everybody, I'm back from my vacation. I've even waded through most > of the 226 posts that happened while I was gone. > > --- "Jeanne A. E. DeVoto" wrote: > > > > 1) Access is a prerequisite for use. (Nimmer's analogy backs this > > position.) > > 2) Blocking access renders fair use moot, since you can't make a > > fair use of it if you can't access it. > > 3) Therefore, circumventing access blocks for the purpose of > > making a fair use ought to inherit the same legal protection as > > fair use itself does. > > There is a common-law copyright principle called the "merger doctrine" > that is necessary to satisfy first amendment demands. It does NOT > directly apply here, but perhaps it's reasoning does. The merger > doctrine was stated as follows by the 2nd Circuit Court of Appeals in > the case KREGOS V. AP, 937 F.2d 700 (2d Cir. 1991). > > "B. Idea/Expression Merger. The fundamental copyright principle that > only the expression of an idea and not the idea itself is protectable, > see Mazer v. Stein, 347 U.S. 201, 217, 98 L. Ed. 630, 74 S. Ct. 460 > (1954), has produced a corollary maxim that even expression is not > protected in those instances where there is only one or so few ways of > expressing an idea that protection of the expression would effectively > accord protection to the idea itself." > > I believe that this reasoning should be applied when access control > blocks fair use. If access control would effectively protect the work > from fair use, then fair use must prevail, as a child of the First > Amendment. Please apply it more specifically yourself. How do you see it application in the framework of an argument? sparky From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:17:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19313 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:17:12 -0500 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19310 for ; Tue, 14 Mar 2000 19:17:10 -0500 Received: from travel-net.com (trj57.travel-net.com [207.176.160.57]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id UAA02171 for ; Tue, 14 Mar 2000 20:30:53 -0500 Message-ID: <38CEE7A3.4D331D4D@travel-net.com> Date: Tue, 14 Mar 2000 20:30:11 -0500 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.72 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Legal research guide References: <4.1.20000313223915.00c45f00@law.harvard.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu FYI, a good jump point for internet legal research is Jess Fry's page at: http://www.azstarnet.com/~frey/ Disclaimer: Jesse and I used to teach a CLE course in internet legal research so I am probably biased. Jeremy Erwin wrote: > > >An informative FAQ on doing legal research is available at: > >http://www.faqs.org/faqs/law/research/part1/ and > >http://www.faqs.org/faqs/law/research/part2/ > >(also ftp://rtfm.mit.edu/pub/usenet/news.answers/law/research/ ) > > > Wendy, is there an update for this? The faq notes that is was last > updated on 11 Jun 1996, and while much of its advice probably still > holds, the "internet" section is out of date. > Jeremy -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin Box 532, RR1 phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J0X 1N0 e-mail:dstein@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:21:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20302 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:21:36 -0500 Received: from hotmail.com (f71.law8.hotmail.com [216.33.241.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA20299 for ; Tue, 14 Mar 2000 19:21:35 -0500 Received: (qmail 47178 invoked by uid 0); 15 Mar 2000 01:34:25 -0000 Message-ID: <20000315013425.47177.qmail@hotmail.com> Received: from 208.41.124.50 by www.hotmail.com with HTTP; Tue, 14 Mar 2000 17:34:25 PST X-Originating-IP: [208.41.124.50] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Wed, 15 Mar 2000 01:34:25 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----Original Message Follows---- From: greslin@linuxpower.org Reply-To: dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Tue, 14 Mar 2000 18:48:29 -0500 On Tue, Mar 14, 2000 at 11:36:46PM +0000, Richard Ramos wrote: > If you want a link to the source code, the DVD-CCA lawyers actually posted > the code to the public. Check out this Wired article about it. > > http://www.wired.com/news/politics/0,1283,33922,00.html > > I find it quite amusing that those lawyers would let this happen. Maybe > they do believe in open source. Or maybe they should be added to the list > of defendants. Hmm. This is actually very old news. About two weeks later, these records were sealed by court order in California. It should also be mentioned that this was part of the reply declaration of John Hoy (President of the DVD CCA) to the granting of an injunction in the trade secret case on January 18th. This document is in no way directly relevant to any of the DMCA/1201 proceedings in New York. Rob Warren greslin@linuxpower.org www.iag.net/~aleris So if the trade secret is out wouldn't that change the issue here? ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:28:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA21663 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:28:43 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA21660 for ; Tue, 14 Mar 2000 19:28:42 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA13101 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:39:21 -0800 Date: Tue, 14 Mar 2000 17:39:21 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000314173921.S13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315013425.47177.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000315013425.47177.qmail@hotmail.com>; from crazed376@hotmail.com on Wed, Mar 15, 2000 at 01:34:25AM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Ramos writes: > [Rob Warren writes:] > > On Tue, Mar 14, 2000 at 11:36:46PM +0000, Richard Ramos wrote: > > If you want a link to the source code, the DVD-CCA lawyers actually > posted > > the code to the public. Check out this Wired article about it. > > > > http://www.wired.com/news/politics/0,1283,33922,00.html > > > > I find it quite amusing that those lawyers would let this happen. Maybe > > they do believe in open source. Or maybe they should be added to the > list > > of defendants. Hmm. > > This is actually very old news. About two weeks later, these records were > sealed by court order in California. > > It should also be mentioned that this was part of the reply declaration of > John Hoy (President of the DVD CCA) to the granting of an injunction in the > trade secret case on January 18th. This document is in no way directly > relevant to any of the DMCA/1201 proceedings in New York. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > > So if the trade secret is out wouldn't that change the issue here? Not "here" as in dvd-discuss, because, even though many people here are interested in the trade secret case, this list exist to talk about the DMCA case. If you want to know if it changes the issue in the California trade secret case, you can ask Robin Gross , and she'll probably tell you that she can't tell you. :-) It almost certainly doesn't change the situation in the Federal cases at all, because the point of those cases is a very bizarre paracopyright law which doesn't mention trade secrets at all. For purposes of the Federal case, you could probably assume that CSS is no longer a secret (considering that the algorithm has been posted on thousands of web sites and may well be published in magazines, journals, and books soon). -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:39:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24551 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:39:35 -0500 Received: from mail2.teleport.com (mail2.teleport.com [192.108.254.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA24548 for ; Tue, 14 Mar 2000 19:39:31 -0500 Received: (qmail 24199 invoked from network); 15 Mar 2000 01:52:40 -0000 Received: from i48-18-20.pdx.du.teleport.com (HELO ?216.26.5.209?) (216.26.6.84) by mail2.teleport.com with SMTP; 15 Mar 2000 01:52:40 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <20000314190134.G18949@linuxpower.org> References: <001f01bf8e0e$44e1d380$d559fea9@25915>; from Ernest Miller on Tue, Mar 14, 2000 at 06:37:32PM -0500 <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 14 Mar 2000 16:47:44 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 4:01 PM -0800 3/14/2000, greslin@linuxpower.org wrote: >On Tue, Mar 14, 2000 at 06:37:32PM -0500, Ernest Miller wrote: >> Copy protection...but, more likely, region coding, forced previews, >> and control of the player market... >Sorry, but region coding and CSS are not analogous. They are completely >distinct mechanisms; they don't really have anything to do with each >other. Of course they do! Not technically - as a technical matter the two are orthogonal - but DVD-CCA's legal control over the means to decrypt CSS-encoded movies is used as the method of pressuring player manufacturers to respect region codes, include Macrovision circuitry, allow disabling of fast forward controls, and potentially include or disable other features. Politically and economically, CSS has everything to do with such features. My speculation is that the threat of loss of the ability to make them mandatory, through losing control of the player market, is most of the motivation for both the California and NY/CT legal actions. -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:41:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25238 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:41:58 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA25234 for ; Tue, 14 Mar 2000 19:41:56 -0500 Received: (qmail 22746 invoked by uid 502); 15 Mar 2000 01:57:30 -0000 Date: Tue, 14 Mar 2000 20:57:30 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000314205730.N18949@linuxpower.org> References: <20000315013425.47177.qmail@hotmail.com> <20000314173921.S13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000314173921.S13379@cty-alum.org>; from Seth David Schoen on Tue, Mar 14, 2000 at 05:39:21PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 05:39:21PM -0800, Seth David Schoen wrote: > Richard Ramos writes: > > > [Rob Warren writes:] > > > > On Tue, Mar 14, 2000 at 11:36:46PM +0000, Richard Ramos wrote: > > > If you want a link to the source code, the DVD-CCA lawyers actually > > posted > > > the code to the public. Check out this Wired article about it. > > > > > > http://www.wired.com/news/politics/0,1283,33922,00.html > > > > > > I find it quite amusing that those lawyers would let this happen. Maybe > > > they do believe in open source. Or maybe they should be added to the > > list > > > of defendants. Hmm. > > > > This is actually very old news. About two weeks later, these records were > > sealed by court order in California. > > > > It should also be mentioned that this was part of the reply declaration of > > John Hoy (President of the DVD CCA) to the granting of an injunction in the > > trade secret case on January 18th. This document is in no way directly > > relevant to any of the DMCA/1201 proceedings in New York. > > > > > > Rob Warren > > greslin@linuxpower.org > > www.iag.net/~aleris > > > > > > So if the trade secret is out wouldn't that change the issue here? > > Not "here" as in dvd-discuss, because, even though many people here are > interested in the trade secret case, this list exist to talk about the > DMCA case. To be completely fair, this isn't true. The DMCA issues just take up most of our time because they have a much wider scope and are frankly a bigger deal. The main "OpenLaw on Open DVD" page makes no DMCA-specific charter, and I haven't heard anything from Wendy saying that this was a DMCA case list. On the contrary, this list's homepage at: http://eon.law.harvard.edu/openlaw/dvd/ addresses both cases equally. > If you want to know if it changes the issue in the California trade > secret case, you can ask Robin Gross , and she'll probably > tell you that she can't tell you. :-) >From what I'm hearing (informally) most of the attorneys involved with this expect that the court will write the Hoy declaration off as inadvertence. Hoy screwed up, they plugged the hole as soon as they could. It's unlikely - though not impossible - that the Hoy declaration will have much impact on the CA case. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:45:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25711 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:45:29 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA25707 for ; Tue, 14 Mar 2000 19:45:28 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA13163 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:56:08 -0800 Date: Tue, 14 Mar 2000 17:56:07 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: What this list is for (was: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE!) Message-ID: <20000314175607.U13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315013425.47177.qmail@hotmail.com> <20000314173921.S13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000314173921.S13379@cty-alum.org>; from schoen@loyalty.org on Tue, Mar 14, 2000 at 05:39:21PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Maybe I can help cut down on the flames here and encourage more topical posting and less non-topical posting. Seth David Schoen writes: > Richard Ramos writes: > > > So if the trade secret is out wouldn't that change the issue here? > > Not "here" as in dvd-discuss, because, even though many people here are > interested in the trade secret case, this list exist to talk about the > DMCA case. It occurs to me that many people have been subscribing to dvd-discuss who might not realize why the list exists. I've heard some people get flamed here for making suggestions or asking questions which are potentially useful and interesting. (For instance, some people suggest protests or educational campaigns; some people suggest strategies for the California cases, _DVDCCA v. McLaughlin_.) Also, some people are discussing how to evade the DMCA or otherwise break the law, rather than challenging it in court. I think that list members here are very hasty to make blanket condemnations of such proposals, as opposed to simply stating that they are off-topic. There are many ways to fight laws (or lawsuits), and many possible responses to either. This particular list seems to have been created for the benefit of people who think that a defense in Federal court in _Universal v. Reimerdes_[1] is at least worthwhile to attempt. (It's also an experiment by the Berkman Center to see if those people can help other people who are actually _attempting_ that defense!) This should not preclude other strategies; certainly I personally think it would be silly and harmful to rely _only_ on a legal defense in that case, and not pursue any other strategies. But everyone who thinks that such a defense is useful can work together on this list. If you think that a legal defense is not useful, you should unsubscribe. If you think that some other strategy is useful, too, you should stay subscribed and find another forum for discussing that strategy. (I can direct people to a few others, although I wish I knew of more.) This applies to discussions of the California case -- that case is important, and the people defending it need help, but presumably the Berkman Center folks don't intend this forum to be used for that, unless they say so. If you think that some other strategy is _not_ useful, you should say why in private e-mail, or on a web page, or something. It would be nice to limit flames here to "that's not topical because it doesn't have to do with the defense in this case". If people go into "that strategy is useless or harmful", then the people proposing another strategy will naturally feel compelled to defend it... [1] and maybe _Universal v. Hughes_? -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 19:47:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA26155 for dvd-discuss-outgoing; Tue, 14 Mar 2000 19:47:56 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA26152 for ; Tue, 14 Mar 2000 19:47:55 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA13176 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 17:58:35 -0800 Date: Tue, 14 Mar 2000 17:58:34 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Message-ID: <20000314175834.V13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315013425.47177.qmail@hotmail.com> <20000314173921.S13379@cty-alum.org> <20000314205730.N18949@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000314205730.N18949@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 14, 2000 at 08:57:30PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > To be completely fair, this isn't true. The DMCA issues just take up most > of our time because they have a much wider scope and are frankly a bigger > deal. The main "OpenLaw on Open DVD" page makes no DMCA-specific charter, > and I haven't heard anything from Wendy saying that this was a DMCA case > list. On the contrary, this list's homepage at: > > http://eon.law.harvard.edu/openlaw/dvd/ > > addresses both cases equally. Thanks. So please consider my previous message amended to say that this forum is for people who think there is some merit in attempting a legal defense in these cases. In particular, that page says We plan to use the openlaw forum to develop arguments, evidence, and strategy to assist the defense. So, if people don't want to assist the defense, they should go somewhere else. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 20:02:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA30222 for dvd-discuss-outgoing; Tue, 14 Mar 2000 20:02:28 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA30219 for ; Tue, 14 Mar 2000 20:02:27 -0500 Received: from ms581801 ([209.138.20.216]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with SMTP id VAA11375 for ; Tue, 14 Mar 2000 21:15:46 -0500 (EST) Message-ID: <001f01bf8e24$562511a0$d8148ad1@ms581801> From: "Ernest Miller" To: References: <20000314233647.55309.qmail@hotmail.com> <20000314184829.F18949@linuxpower.org> Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! Date: Tue, 14 Mar 2000 21:15:28 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----- Original Message ----- From: To: Sent: Tuesday, March 14, 2000 6:48 PM Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! > It should also be mentioned that this was part of the reply declaration of > John Hoy (President of the DVD CCA) to the granting of an injunction in the > trade secret case on January 18th. This document is in no way directly > relevant to any of the DMCA/1201 proceedings in New York. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris Actually, the reply declaration of John Hoy is relevant. Note that the CT lawyers have cited it in their pre-filing letter, and are trying to bring the DVD CCA into the case. From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 20:03:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA30568 for dvd-discuss-outgoing; Tue, 14 Mar 2000 20:03:30 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA30550 for ; Tue, 14 Mar 2000 20:03:29 -0500 Received: (qmail 20376 invoked by uid 60001); 15 Mar 2000 02:16:40 -0000 Message-ID: <20000315021640.20375.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Tue, 14 Mar 2000 18:16:40 PST Date: Tue, 14 Mar 2000 18:16:40 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] First Amendment. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > > I don't think this is correct. Think of a facial challenge to a > > Federal law (such as in _ACLU v. Reno_ with the CDA, a recent > > successful example). > > That challenge is filed in Federal court, but in a lower court (US > > District Court for a Randomly Chosen District), not the Supreme > > Court. > > It was the Supreme Court that struck it down. AFAIK, only the > Supreme Court has the power to go up against Congress; it's called > checks and balances. The attorneys I've spoken to have agreed with > this. I don't believe you when you say that attorneys have agreed with this. > http://www.epic.org/cda/ > After following one more link from your URL, I quickly found this in the text of the decision: " ... the American Civil Liberties Union (the ACLU) filed their action in the United States District Court for the Eastern District of Pennsylvania on the day the Act was signed, and moved for a temporary restraining order to enjoin enforcement of these two provisions of the CDA. On February 15, 1996, following an evidentiary hearing, Judge Ronald L. Buckwalter, to whom the case had been assigned, granted a limited temporary restraining order, finding in a Memorandum that 47 U.S.C. Sec. 223(a)(1)(B) ("the indecency provision" of the CDA) was unconstitutionally vague." The 3rd Circuit affirmed, and then the Supreme Court affirmed, but it was Judge Ronal Buckwalter who struck down the law. > Not according to the United States Constitution. It makes it fairly > clear that the First Law of the United States is the Constitution; > following that is a balance of three powers - Congress, the President > and the Supreme Court. All other courts are inferior (the > Constitution's word) to these three. Federal courts overturn acts of > state legislatures, not acts of Congress. The use of the word "inferior" comes foremost from the Art I, Section 8 clause that grants Congress the power to "To constitute Tribunals inferior to the supreme Court". This explains why Art. III Section 1 says "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Note the use of the word "and" showing that the inferior Courts wield the judicial Power of the United States. Actually, following Wickard v Filburn and it's ilk, Congress is now allowed to form 'paratribunals' to review and overturn Supreme Court decisions, since these substaintially affect commerce. [sad but true] > If a case gets appealed to the point that it is obvious that in order > to settle it the constitutionality of a congressional act must be > called into question, only the Supreme Court has the authority to > make that call. So what do you suppose would have happened in Reno v ACLU if the Supreme Court would have denied certiori to Reno's appeal? > If you doubt it, I challenge you to cite a single case where any > court inferior to the Supreme Court overturned a congressional act or > an executive order. You alread posted the example: Reno v ACLU. I'll give you another one: Bernstein v. DOJ __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 20:05:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31350 for dvd-discuss-outgoing; Tue, 14 Mar 2000 20:05:58 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA31328 for ; Tue, 14 Mar 2000 20:05:56 -0500 Received: from ms581801 ([209.138.20.216]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with SMTP id VAA12717 for ; Tue, 14 Mar 2000 21:19:16 -0500 (EST) Message-ID: <002c01bf8e24$d2df9c60$d8148ad1@ms581801> From: "Ernest Miller" To: References: <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Date: Tue, 14 Mar 2000 21:18:58 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----- Original Message ----- From: To: Sent: Tuesday, March 14, 2000 7:01 PM Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction > On Tue, Mar 14, 2000 at 06:37:32PM -0500, Ernest Miller wrote: > > Copy protection...but, more likely, region coding, forced previews, > > and control of the player market... > > Sorry, but region coding and CSS are not analogous. They are completely > distinct mechanisms; they don't really have anything to do with each > other. > > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > Technically, it is not clear how closely they are tied together, but note the following quote from the DVD-CCA webpage (RPC = region coding): "Phase I RPC implementations allowed computer-based DVD playback systems to implement RPC functions in the playback system, so long as the RPC functionality was closely coupled with the CSS authentication and decryption functionality. " Furthermore, even if they are not tied together technically, they are tied together legally through restrictive licensing of CSS. For purposes of this case, this is a distinction without a difference. From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 20:12:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02324 for dvd-discuss-outgoing; Tue, 14 Mar 2000 20:12:28 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA02320 for ; Tue, 14 Mar 2000 20:12:27 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id SAA06093 for ; Tue, 14 Mar 2000 18:26:02 -0800 (PST) Message-ID: <38CEF45D.F27C5082@cdpage.com> Date: Tue, 14 Mar 2000 19:24:29 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: <20000314230531.26787.qmail@hotmail.com> <20000314151657.L13379@cty-alum.org> <38CEE034.F248CE51@cdpage.com> <20000314172022.O13379@cty-alum.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen wrote: > I thought I heard "casual piracy", not "casual copying", but it might be a > case of very selective memory. You are correct all around. :-) The reason this is emblazoned on my memory is that I was once a speaker on a panel about this very topic with a couple of IP lawyers and a former crypto guy who is now a DVD developer. When I pointed this out (CSS is to prevent "casual copying", it does not and will not deter piracy) and the crypto/DVD developer backed me up, one of the lawyers blurted out "But that's not illegal!" Exactly, I said. It was a fine moment. -- Dana J. Parker From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 20:24:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08946 for dvd-discuss-outgoing; Tue, 14 Mar 2000 20:24:04 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA08943 for ; Tue, 14 Mar 2000 20:24:00 -0500 Received: (qmail 23009 invoked by uid 502); 15 Mar 2000 02:39:32 -0000 Date: Tue, 14 Mar 2000 21:39:32 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First Amendment. Message-ID: <20000314213932.R18949@linuxpower.org> References: <20000315021640.20375.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000315021640.20375.qmail@web503.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 14, 2000 at 06:16:40PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 06:16:40PM -0800, Bryan Taylor wrote: > > > --- greslin@linuxpower.org wrote: > > > I don't think this is correct. Think of a facial challenge to a > > > Federal law (such as in _ACLU v. Reno_ with the CDA, a recent > > > successful example). > > > That challenge is filed in Federal court, but in a lower court (US > > > District Court for a Randomly Chosen District), not the Supreme > > > Court. > > > > It was the Supreme Court that struck it down. AFAIK, only the > > Supreme Court has the power to go up against Congress; it's called > > checks and balances. The attorneys I've spoken to have agreed with > > this. > > I don't believe you when you say that attorneys have agreed with this. It was a misunderstanding on my part, Bryan. If you read the whole thread before cranking out your own posts, you'd know that I already have admitted this. I have also already told you this offline. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 21:20:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21814 for dvd-discuss-outgoing; Tue, 14 Mar 2000 21:20:56 -0500 Received: from dial92.cybermesa.com (dial92.cybermesa.com [209.12.75.92]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA21811 for ; Tue, 14 Mar 2000 21:20:52 -0500 Received: (from paul@localhost) by dial92.cybermesa.com (8.8.7/8.8.7) id UAA03043 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 20:37:12 -0700 Date: Tue, 14 Mar 2000 20:37:08 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fair Access (Was: ACCESS as USE) Message-ID: <20000314203708.A2953@localhost> References: <20000314223826.26100.qmail@web502.mail.yahoo.com> <38CED092.1DECAEAF@mindspring.com> <20000314171411.A2105@localhost> <38CEE4D5.174B113E@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38CEE4D5.174B113E@mindspring.com>; from jeff-w@mindspring.com on Tue, Mar 14, 2000 at 08:18:13PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 08:18:13PM -0500, Jeff Waller wrote: > Hmm, that's all access is? The act of unencrypting with authority? Yes, roughly. It doesn't even need to be encryption per se. > While circumventing is unencrypting without authority? Well Yes. > from a technological viewpoint that's problematic because > DeCSS could be used to circumvent both fairly (watch a movie > we say) and unfairly (removing the copyright information) since Law != fair. Some laws are incredibly stupid. The DMCA is in this category. This is the reason why I am participating in dvd-discuss. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 21:45:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA28489 for dvd-discuss-outgoing; Tue, 14 Mar 2000 21:45:54 -0500 Received: from dial194.roadrunner.com (dial194.cybermesa.com [209.12.75.194]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA28457 for ; Tue, 14 Mar 2000 21:45:46 -0500 Received: (from paul@localhost) by dial194.roadrunner.com (8.8.7/8.8.7) id VAA03179 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 21:02:21 -0700 Date: Tue, 14 Mar 2000 21:02:20 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314210219.B2953@localhost> References: <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jaed@jaedworks.com on Tue, Mar 14, 2000 at 04:47:44PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think the issue of region codes is likely to be trickier than the other points you mention. If one wanted _real_ region codes, one would just make the player keys region-dependent. The problem with this scheme is that if the MPAA were to be spanked (again) by some country's courts for restraint of trade, they might need to shed region codes. They wouldn't want to risk losing access control on the material already out there if the court ordered them to give up the existing region codes. I believe the part about other features, but analog copy-control is in the law for recording devices: § 17 U.S.C. 1201(k): o (k) Certain Analog Devices and Certain Technological Measures. - (1) Certain analog devices. - (A) Effective 18 months after the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in any - (i) VHS format analog video cassette recorder unless such recorder conforms to the automatic gain control copy control technology; (ii) 8mm format analog video cassette camcorder unless such camcorder conforms to the automatic gain control technology; (iii) Beta format analog video cassette recorder, [ ... ] (4) Definitions. - For purposes of this subsection: (A) An ''analog video cassette recorder'' means a device that records, or a device that includes a function that records, on electromagnetic tape in an analog format the electronic impulses produced by the video and audio portions of a television program, motion picture, or other form of audiovisual work. Paul Fenimore On Tue, Mar 14, 2000 at 04:47:44PM -0800, Jeanne A. E. DeVoto wrote: > At 4:01 PM -0800 3/14/2000, greslin@linuxpower.org wrote: > >On Tue, Mar 14, 2000 at 06:37:32PM -0500, Ernest Miller wrote: > >> Copy protection...but, more likely, region coding, forced previews, > >> and control of the player market... > >Sorry, but region coding and CSS are not analogous. They are completely > >distinct mechanisms; they don't really have anything to do with each > >other. > > Of course they do! > > Not technically - as a technical matter the two are orthogonal - but > DVD-CCA's legal control over the means to decrypt CSS-encoded movies is > used as the method of pressuring player manufacturers to respect region > codes, include Macrovision circuitry, allow disabling of fast forward > controls, and potentially include or disable other features. [ ... ] From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 22:02:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32572 for dvd-discuss-outgoing; Tue, 14 Mar 2000 22:02:08 -0500 Received: from dial187.roadrunner.com (dial187.cybermesa.com [209.12.75.187]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA32569 for ; Tue, 14 Mar 2000 22:02:01 -0500 Received: (from paul@localhost) by dial187.roadrunner.com (8.8.7/8.8.7) id VAA03356 for dvd-discuss@eon.law.harvard.edu; Tue, 14 Mar 2000 21:18:33 -0700 Date: Tue, 14 Mar 2000 21:18:32 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000314211832.A3342@localhost> References: <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000314210219.B2953@localhost>; from fenimore@roadrunner.com on Tue, Mar 14, 2000 at 09:02:20PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 09:02:20PM -0700, Paul Fenimore wrote: > § 17 U.S.C. 1201(k): Obviously, that should be 17 U.S.C. § 1201(k). Twice in one day no less. Time for a break. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 22:47:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11629 for dvd-discuss-outgoing; Tue, 14 Mar 2000 22:47:39 -0500 Received: from mail3.teleport.com (mail3.teleport.com [192.108.254.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA11626 for ; Tue, 14 Mar 2000 22:47:37 -0500 Received: (qmail 15522 invoked from network); 15 Mar 2000 04:58:59 -0000 Received: from i48-18-20.pdx.du.teleport.com (HELO ?216.26.6.84?) (216.26.6.84) by mail3.teleport.com with SMTP; 15 Mar 2000 04:58:59 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <20000314210219.B2953@localhost> References: ; from jaed@jaedworks.com on Tue, Mar 14, 2000 at 04:47:44PM -0800 <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 14 Mar 2000 21:00:26 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 8:02 PM -0800 3/14/2000, Paul Fenimore wrote: > >I think the issue of region codes is likely to be trickier than the >other points you mention. If one wanted _real_ region codes, one >would just make the player keys region-dependent. The problem with >this scheme is that if the MPAA were to be spanked (again) by some >country's courts for restraint of trade, they might need to shed region >codes. They wouldn't want to risk losing access control on the material >already out there if the court ordered them to give up the existing >region codes. > Maybe. I'm a little mystified about the region codes anyway. Everyone seems to believe region encoding is the Holy Grail that underlies the plaintiffs' strong legal defense of CSS as a business matter, but I question how much good region encoding does to the studios' bottom line. It's not as though previous formats could be region-locked. It doesn't even seem all that difficult to get unlockable players, if you're one of the not-too-many who care enough about getting the latest and greatest to import a DVD. Is it distributor protection? >I believe the part about other features, but analog copy-control is >in the law for recording devices: Right, but there's nothing in the law that says DVD players (digital players generally) are required to implement Macrovision. My understanding of the technology is that if the DVD player doesn't support Macrovision then whether the VCR (analog player generally) defeats it doesn't matter. -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 23:16:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22577 for dvd-discuss-outgoing; Tue, 14 Mar 2000 23:16:14 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA22574 for ; Tue, 14 Mar 2000 23:16:10 -0500 Received: (qmail 19995 invoked by uid 60001); 15 Mar 2000 05:29:30 -0000 Message-ID: <20000315052930.19994.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Tue, 14 Mar 2000 21:29:30 PST Date: Tue, 14 Mar 2000 21:29:30 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] ACCESS as USE To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > We've already been over this, so I'm not going to get into it again > other than to say - again - that Jon had every motivation to be > less than truthful in those interviews. I'm not saying he lied. > I'm saying that to simply take those interviews on faith is to be > more than a bit naive about how people work. What you are basically saying implies that anyone accused of a crime is not trustworthy. I'm saying people should be trusted if what they say is plausible and there is no evidence to the contrary. > I try to make it a point not to question someone's honor, and I'm not > questioning Jon's. I am *not* assuming that Jon can't be trusted. > You, however, are assuming that he *can* be. It's wiser to not make > either assumption and instead make a judgement call based on the > evidence. Exactly. The only evidence I see says DeCSS was made by a linux enthusiast to transfer vob files from windows to linux so they could be viewed. This evidence is admittedly a bit thin now, but there really isn't much at all on the other side, yet. I would like to know it if there is. OK, allegedly Johansen "borrowed" a better way to code the algorithm and some other programming ideas from Derek Fawcus without proper credit. He was obviously NOT an "old pro" in the culture of open source and he stepped on some toes. Presumably, the reason Derek knew this happened is because he was able to read the DeCSS source for the new version. > But if he wasn't directly participating in livid-dev, that's evidence > against the idea that DeCSS was developed as part of LiViD. We have > no real way of knowing whether Jon was telling the truth; that's > why we need evidence to support it, beyond simply Jon's press > testimony. This is true, but he did participate to some extent by posting code, albeit after a bit of prodding. Second, his efforts to develop DVD on linux need not be defined solely by his participation in LiViD. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 23:44:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28269 for dvd-discuss-outgoing; Tue, 14 Mar 2000 23:44:01 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA28266 for ; Tue, 14 Mar 2000 23:44:00 -0500 Received: (qmail 28337 invoked by uid 60001); 15 Mar 2000 05:57:17 -0000 Message-ID: <20000315055717.28336.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Tue, 14 Mar 2000 21:57:17 PST Date: Tue, 14 Mar 2000 21:57:17 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Kent Nguyen wrote: >>>> "DeCSS means any computer program, file or device that >>>> may be used to decrypt or unscramble the contents of DVDs >>>> that are protected, or otherwise to circumvent the protection >>>> afforded, by CSS and that permits the copying of the contents >>>> or any portion thereof. " >>> My definition of DeCSS. >>> DeCSS means source code for Linux users to use to study the >>> nature of CSS. >> I see. So, the COURT has one definition, but you don't like it, so >> you have replaced it with another. Good strategy. Very helpful. >> Thanks. > It is necessary when in course the court does not understand > the technical understanding in the matter be explained or corrected. > Unfortunately Kaplan muted the defendant several times while trying > to explain to the court. When the court shows a lack of respect > to reason and explanation, it is within the power of the people to > replace the judge in question. "The people" have not concluded, nor are they going to, that Judge Kaplan's definition of DeCSS was "shows a lack of resprect to reason and explanation". I think only you have reached this conclusion. Kent, it's great that you want to define DeCSS in a different way and all, but the conclusions that you draw about your concept of DeCSS will then have no relevance to the NY case and will only lead to confusion. Judge Kaplan defined DeCSS appropriately for the case presented to him -plaintiffs claimed the defendants were trafficking in a binary executable that violated 1201(a)(2). This is what he banned. If you want to refer to DeCSS as meaning something else, then great, but you are speaking about things that are not at issue. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 14 23:55:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29708 for dvd-discuss-outgoing; Tue, 14 Mar 2000 23:55:31 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA29705 for ; Tue, 14 Mar 2000 23:55:29 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id AAA28067 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 00:08:48 -0600 Date: Wed, 15 Mar 2000 00:08:48 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000315000848.A27997@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: ; <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: ; from jaed@jaedworks.com on Tue, Mar 14, 2000 at 09:00:26PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 09:00:26PM -0800, Jeanne A. E. DeVoto wrote: > At 8:02 PM -0800 3/14/2000, Paul Fenimore wrote: > > > >I think the issue of region codes is likely to be trickier than the > >other points you mention. If one wanted _real_ region codes, one > >would just make the player keys region-dependent. The problem with > >this scheme is that if the MPAA were to be spanked (again) by some > >country's courts for restraint of trade, they might need to shed region > >codes. They wouldn't want to risk losing access control on the material > >already out there if the court ordered them to give up the existing > >region codes. > > > > Maybe. I'm a little mystified about the region codes anyway. Everyone seems > to believe region encoding is the Holy Grail that underlies the plaintiffs' > strong legal defense of CSS as a business matter, but I question how much > good region encoding does to the studios' bottom line. It's not as though > previous formats could be region-locked. It doesn't even seem all that > difficult to get unlockable players, if you're one of the not-too-many who > care enough about getting the latest and greatest to import a DVD. Is it > distributor protection? Keep in mind that VHS is different in Europe from the USA because of the different TV signal formats (NTSC and PAL). So if The Matrix came out on VHS in the US before the theatrical release in Europe, importing tapes from the US doesn't do a lot of good. But DVD is the same _everywhere_, and the PAL/NTSC signals are created by the hardware. So without region codes the MPAA's carefully constructed release schedule is blown away. That's not even touching the issue of price-fixing. From what I hear it's pretty common for a DVD to cost significantly more in England than here. That's also a big chunk of change protected by the region coding scheme. As for the "holy grail" part, I would agree. Using the tying of region coding to CSS to get the lawsuits dismissed is probably only going to happen in my dreams. I don't think that makes it worthless, however. It can be part of a larger argument that a new "access control" right for copyright owners is ripe for abuse. From that perhaps 1201 can be found unconstitutional, or perhaps simply self-contradictory and unenforceable. Or maybe I'm dreaming again. Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 00:29:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA00698 for dvd-discuss-outgoing; Wed, 15 Mar 2000 00:29:59 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA00694 for ; Wed, 15 Mar 2000 00:29:58 -0500 Received: (qmail 2101 invoked by uid 60001); 15 Mar 2000 06:43:18 -0000 Message-ID: <20000315064318.2100.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Tue, 14 Mar 2000 22:43:18 PST Date: Tue, 14 Mar 2000 22:43:18 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > If sale=authorization, then why does CSS exist? First off, just because you are authorized to access does not mean you'll be able to. CSS exists to make this difficult, so that most consumers will behave like the good sheep that they are and not get into mischief. The second, more sinister reason for CSS is that the movie industry wants an access control system so that they can tie playback to separately purchased players that leech off of the DVD movie copyrights to create another revenue stream through licencing fees. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 01:02:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04201 for dvd-discuss-outgoing; Wed, 15 Mar 2000 01:02:14 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA04198 for ; Wed, 15 Mar 2000 01:02:12 -0500 Received: (qmail 1753 invoked by uid 500); 15 Mar 2000 07:21:07 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 15 Mar 2000 07:21:07 -0000 Date: Tue, 14 Mar 2000 23:21:07 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <20000315055717.28336.qmail@web504.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 14 Mar 2000, Bryan Taylor wrote: > Judge Kaplan defined DeCSS appropriately for the case presented to him > -plaintiffs claimed the defendants were trafficking in a binary > executable that violated 1201(a)(2). This is what he banned. If you > want to refer to DeCSS as meaning something else, then great, but you > are speaking about things that are not at issue. If I remembered and what the injunction stated as well as the lawsuit file against several defendants that they've posted DeCSS source code to be taken down, namely 2600. > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > > From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 07:42:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA29855 for dvd-discuss-outgoing; Wed, 15 Mar 2000 07:42:20 -0500 Received: from mail1.bellatlantic.net (mail1.bellatlantic.net [199.45.32.38]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA29852 for ; Wed, 15 Mar 2000 07:42:19 -0500 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by mail1.bellatlantic.net (8.9.1/8.9.1) with SMTP id IAA24407 for ; Wed, 15 Mar 2000 08:55:36 -0500 (EST) Message-Id: <4.1.20000314232729.00d14ad0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Wed, 15 Mar 2000 08:59:48 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] PLEASE PLEASE PLEASE, DeCSS is SOURCE CODE! In-Reply-To: <20000314205730.N18949@linuxpower.org> References: <20000314173921.S13379@cty-alum.org> <20000315013425.47177.qmail@hotmail.com> <20000314173921.S13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:57 PM 3/14/00 -0500, Rob wrote: >To be completely fair, this isn't true. The DMCA issues just take up most >of our time because they have a much wider scope and are frankly a bigger >deal. The main "OpenLaw on Open DVD" page makes no DMCA-specific charter, >and I haven't heard anything from Wendy saying that this was a DMCA case >list. On the contrary, this list's homepage at: > >http://eon.law.harvard.edu/openlaw/dvd/ > >addresses both cases equally. ...and should add the Connecticut case as well. The openlaw forum and list are here to help develop legal arguments in defense of the posters of DeCSS. Discussion has focused on the NY and Connecticut DMCA complaints because those claims are more general, based in federal and constitutional law. Those are also the claims that are more likely to be used again, against other defendants. Trade secret, the basis of the California case, is a matter of state law, and is much more fact-specific. Constructive suggestions or criticisms of existing arguments are welcome on either case. --Wendy --- Wendy Seltzer Fellow, Berkman Center for Internet & Society at Harvard Law School wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 08:48:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA02886 for dvd-discuss-outgoing; Wed, 15 Mar 2000 08:48:08 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA02883 for ; Wed, 15 Mar 2000 08:48:07 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id HAA29721 for ; Wed, 15 Mar 2000 07:01:43 -0800 (PST) Message-ID: <38CFA57A.8AD8EEE5@cdpage.com> Date: Wed, 15 Mar 2000 08:00:10 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: ; from jaed@jaedworks.com on Tue, Mar 14, 2000 at 04:47:44PM -0800 <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Jeanne A. E. DeVoto" wrote: > Is it > distributor protection? Yes. > Right, but there's nothing in the law that says DVD players (digital > players generally) are required to implement Macrovision. My understanding > of the technology is that if the DVD player doesn't support Macrovision > then whether the VCR (analog player generally) defeats it doesn't matter. It's in the DVD license that players must support Macrovision. Macrovision is enabled by a SW flag on the disc. (This is a simplistic explanation, I need to delve deeper into this.) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 08:53:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA03933 for dvd-discuss-outgoing; Wed, 15 Mar 2000 08:53:34 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA03930 for ; Wed, 15 Mar 2000 08:53:32 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id HAA00266 for ; Wed, 15 Mar 2000 07:07:07 -0800 (PST) Message-ID: <38CFA6BD.5C0B3C1E@cdpage.com> Date: Wed, 15 Mar 2000 08:05:34 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: ; <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> <20000315000848.A27997@thud.reric.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > Keep in mind that VHS is different in Europe from the USA because of the > different TV signal formats (NTSC and PAL). So if The Matrix came out on > VHS in the US before the theatrical release in Europe, importing tapes > from the US doesn't do a lot of good. Most Europpean VCRs can play both NTSC and PAL. > But DVD is the same _everywhere_, and the PAL/NTSC signals are created by > the hardware. So without region codes the MPAA's carefully constructed > release schedule is blown away. No, it isn't the same everywhere. There are PAL DVDs and there are NTSC DVDs. But again, most European players can play both formats. See http://www.dvddemystified.com/dvdfaq.html#1.19 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 09:01:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA05330 for dvd-discuss-outgoing; Wed, 15 Mar 2000 09:01:13 -0500 Received: from hotmail.com (law2-f77.hotmail.com [216.32.181.77]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA05327 for ; Wed, 15 Mar 2000 09:01:11 -0500 Received: (qmail 20336 invoked by uid 0); 15 Mar 2000 15:14:02 -0000 Message-ID: <20000315151402.20335.qmail@hotmail.com> Received: from 205.147.249.59 by www.hotmail.com with HTTP; Wed, 15 Mar 2000 07:14:02 PST X-Originating-IP: [205.147.249.59] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Two Arguments Date: Wed, 15 Mar 2000 10:14:02 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In an effort to focus discussion I am making the following statement: The two strongest arguments in the 1201 case are as follows: 1. Authorization a. 1201(a)(2) is unconstitutionally vague because it does not describe how a user obtains authorization. Thus, the public is unable to determine how to avoid liability under the DMCA. Counter Argument: One avoids liability under the DMCA by going down to Circuit City and buying a Sony, some DVD's, and popping some popcorn, and watching these movies 'til your heart's content. b. 1201(a)(2) is not violated by DeCSS because authorization is implicitly granted at some point (perhaps sale of the DVD). Counter Argument: Authorization is not granted until the actual access occurs. But see discussion supra Part 1.a (discussing inability of accesser to determine liability). Practical Matter: Copyright owners can explicitly grant authorization at another point. For example, the authorization could flow through the purchase of a DVD player, or the licensing of the particular key, etc. 2. Exclusive Rights a. 1201 allows copyright owners to authorize access. However, 106 provides that copyright owners may authorize the exclusive rights contained in 106, which rights do not include access. Thus, 1201 has the practical effect of granting copyright owners a new exclusive right: "access." Such was not the intent of Congress. Counter Argument: Congress intended to do exactly what it did: prohibit unauthorized access (paracopyright). The appropriate redress is in Congress, not the courts. b. [Fill in your pet argument that 1201 violates the First Amendment/Fair Use. Have fun. Go wild]. Counter Argument: Too many to explain here. Ok, got it? Now let 'er rip. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 09:09:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA05602 for dvd-discuss-outgoing; Wed, 15 Mar 2000 09:09:35 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA05599 for ; Wed, 15 Mar 2000 09:09:34 -0500 Received: (qmail 29077 invoked by uid 502); 15 Mar 2000 15:25:16 -0000 Date: Wed, 15 Mar 2000 10:25:16 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000315102516.N25270@linuxpower.org> References: <20000315052930.19994.qmail@web508.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000315052930.19994.qmail@web508.mail.yahoo.com>; from Bryan Taylor on Tue, Mar 14, 2000 at 09:29:30PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 14, 2000 at 09:29:30PM -0800, Bryan Taylor wrote: > > > --- greslin@linuxpower.org wrote: > > We've already been over this, so I'm not going to get into it again > > other than to say - again - that Jon had every motivation to be > > less than truthful in those interviews. I'm not saying he lied. > > I'm saying that to simply take those interviews on faith is to be > > more than a bit naive about how people work. > > What you are basically saying implies that anyone accused of a crime is > not trustworthy. I'm saying people should be trusted if what they say > is plausible and there is no evidence to the contrary. Of course this is *not* what I'm saying. The rest of your post indicates that you understand this. It's a shame you didn't go back and revise this opening line. What I am saying is that trust shouldn't be an issue here. Jon's testimony is exactly that - a testimony. In gauging M.O.R.E.'s intent, simply saying "Jon said it, I believe it, that settles it" is nothing more than religious faith. If all we have is are after-the-fact interviews in the Linux press, and then evidence that casts some doubt on those assertions, we need to follow up on that evidence. This is why we need to get in touch with Derek. The posts made to livid-dev in October 1999, while not conclusive, cast doubt. This can be brought back to bite us in court. Do you really want to go in front of the judge and say, "Jon said it in the press. We should trust him. Why would he lie?" ? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 09:55:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA09788 for dvd-discuss-outgoing; Wed, 15 Mar 2000 09:55:38 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA09785 for ; Wed, 15 Mar 2000 09:55:37 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA29392 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 10:08:57 -0600 Date: Wed, 15 Mar 2000 10:08:57 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000315100857.A29366@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: ; <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> <20000315000848.A27997@thud.reric.net> <38CFA6BD.5C0B3C1E@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <38CFA6BD.5C0B3C1E@cdpage.com>; from dparker@cdpage.com on Wed, Mar 15, 2000 at 08:05:34AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 08:05:34AM -0700, Dana Parker wrote: > Eric Seppanen wrote: > > > But DVD is the same _everywhere_, and the PAL/NTSC signals are created by > > the hardware. So without region codes the MPAA's carefully constructed > > release schedule is blown away. > > No, it isn't the same everywhere. There are PAL DVDs and there are NTSC DVDs. But > again, most European players can play both formats. OK, looks like I was completely 100% wrong here. Oops, sorry. Please disregard my last post. But if Europeon players can play both, the end result is the same: region codes are necessary to protect price and release-date skew between North America and Europe. I've gotta imagine that that's worth a significant amount of money. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 11:08:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA22079 for dvd-discuss-outgoing; Wed, 15 Mar 2000 11:08:55 -0500 Received: from dial64.cybermesa.com (dial64.cybermesa.com [209.12.75.64]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA22076 for ; Wed, 15 Mar 2000 11:08:52 -0500 Received: (from paul@localhost) by dial64.cybermesa.com (8.8.7/8.8.7) id KAA01343 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 10:25:30 -0700 Date: Wed, 15 Mar 2000 10:25:29 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments Message-ID: <20000315102528.A1190@localhost> References: <20000315151402.20335.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000315151402.20335.qmail@hotmail.com>; from jadaub@hotmail.com on Wed, Mar 15, 2000 at 10:14:02AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 10:14:02AM -0500, Joshua Daub wrote: > In an effort to focus discussion I am making the following statement: > > The two strongest arguments in the 1201 case are as follows: > > 1. Authorization > > a. 1201(a)(2) is unconstitutionally vague because it does not describe how > a user obtains authorization. Thus, the public is unable to determine how > to avoid liability under the DMCA. > > Counter Argument: One avoids liability under the DMCA by going down to > Circuit City and buying a Sony, some DVD's, and popping some popcorn, and > watching these movies 'til your heart's content. Counter-counter Argument: There is no "the" copyright holder refered to in § 1201. The idea that buying a device would confer authority to view runs up hard against the fact that Sony has no way to guarantee that it has obtained permission from every copyright holder of CSS'ed DVD material. I think we are back to vague. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 11:11:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA22489 for dvd-discuss-outgoing; Wed, 15 Mar 2000 11:11:39 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA22486 for ; Wed, 15 Mar 2000 11:11:37 -0500 Received: (qmail 27548 invoked by uid 60001); 15 Mar 2000 17:24:54 -0000 Message-ID: <20000315172454.27547.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Wed, 15 Mar 2000 09:24:54 PST Date: Wed, 15 Mar 2000 09:24:54 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Source Code or Object Code? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Kent Nguyen wrote: > If I remembered and what the injunction stated as well as the lawsuit > file against several defendants that they've posted DeCSS source > code to be taken down, namely 2600. I went back and read the injunction, the complaint, and several other documents for the NY case. They don't seem to discriminate between source code and object code. Nowhere that I could find does it state whether the defendants posted object code or source code, nor do I see any evidence that anyone thinks this is an important distinction. This is highly odd. For example, the injunction says: 3.(c) "DeCSS" means any computer program, file or device that may be used to decrypt or unscramble the contents of DVDs that are protected, or otherwise to circumvent the protection afforded by, [sic] CSS and that permits the copying of the contents of any portion thereof. By my reading, the judge and plaintiffs lump the DeCSS source code in with the object code and both are banned. If anybody has other information, please post it. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 11:37:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26489 for dvd-discuss-outgoing; Wed, 15 Mar 2000 11:37:13 -0500 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA26485 for ; Wed, 15 Mar 2000 11:37:12 -0500 Received: from 216-164-138-28.s28.tnt5.lnhva.md.dialup.rcn.com ([216.164.138.28]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12VHwD-0002s9-00 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 12:50:30 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000315151402.20335.qmail@hotmail.com> References: <20000315151402.20335.qmail@hotmail.com> Date: Wed, 15 Mar 2000 12:45:21 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Two Arguments Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >In an effort to focus discussion I am making the following statement: > >The two strongest arguments in the 1201 case are as follows: > >1. Authorization > >a. 1201(a)(2) is unconstitutionally vague because it does not >describe how a user obtains authorization. Thus, the public is >unable to determine how to avoid liability under the DMCA. > >Counter Argument: One avoids liability under the DMCA by going down >to Circuit City and buying a Sony, some DVD's, and popping some >popcorn, and watching these movies 'til your heart's content. I don't know if this i directly relevant, but I noticed that some of the DVDs I have explain that they are compatible with players displaying the following logos: [The region 1 logo], and [The DVD-Video logo]. source: Saving Private Ryan Jesus Christ Superstar Now, I just looked at the front of my "Iomagic MagicDVD 6X" and noted that the tray displays a DVD-ROM logo. My ATI DVD player displays a DVD-Video logo upon startup. Now, let's look at the implied contract/guarantee embedded in that sale. The DVDs are not guaranteed to work with the Iomagic DVD drive; they are guaranteed to work with my ATI-DVD player. Suppose, now, that I didn't have a Windows partition, and no "commercial" DVD-Video player for Linux. If I bought the discs, I would have no right to expect compatibility, merely because I have a DVD-Rom drive. This argument is somewhat close to Sega's use of its logo to deter "piracy" . (see Sega v. Accolade (977 F.2d 1510)) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:00:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02380 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:00:07 -0500 Received: from tomts2-srv.bellnexxia.net (tomts2.bellnexxia.net [209.226.175.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02377 for ; Wed, 15 Mar 2000 12:00:06 -0500 Received: from sympatico.ca ([206.172.192.33]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000315181252.RAQY17030.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Wed, 15 Mar 2000 13:12:52 -0500 Message-ID: <38CFD478.D0E0B26A@sympatico.ca> Date: Wed, 15 Mar 2000 13:20:40 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: "dvd-discuss@eon.law.harvard.edu" Subject: [dvd-discuss] Blacks: "authority"/"authorize" defins. Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu For our reference: From: Blacks Law Dictionary, 6th ed, pp. 133-134. ::Authority:: Permission. Right to exercise power; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction. Often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another. Power of agent to affect legal relations of principal by acts done in accordance with principal's manifestations of consent to agent. See Restatement, Second, Agency, s. 7. Refers to the precedential value to be accorded an opinion of a judicial or administrative body. A court's opinion is binding authority on other courts directly below it in the judicial hierarchy. Opinions of lower courts or of courts outside the hierarchy are governed by the degree to which it adheres to the doctrine of stare decisis. Legal power; a right to command or to act; the right and power of public officers to require obedience to their orders lawfully issued in the scope of their public duties. :Actual express authority: Actual authority derived from written or spoken words of principal. :Actual implied authority: Actual authority inferred from words or conducted manifested to agent by principal. :Apparent authority: That which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. The power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the others manifestations to such third persons. Restatement, Second, Agency s. 8. :Authority by estoppel: Not actual, but apparent only, being imposed on the principal because his conduct has been such as to mislead, so that it would be unjust to let him deny it. :Authority coupled with an interest: Authority given to an agent for a valuable consideration, or which forms part of a security. :Express Authority: That given explicitly, either in writing or orally. :General Authority: That which authorizes the agent to do everything connected with a particular business. it empowers him t bind his principal by-all acts within the scope of his employment; and it cannot be limited by any private direction not known to the party dealing with him. :Implied authority: Actual authority circumstantially proved. That which the principal intends his agent to possess, and which is implied from the principal's conduct. It includes only such acts as are incidental and necessary to the exercise of the authority expressly granted. :Incidental authority: Such authority as is necessary to carry out authority which is actually or apparently given, e.g. authority to borrow money carries with it as an incidental authority the power to sign commercial paper to effectuate the borrowing. :Inferred authority: See Incidental Authority above. :Inherent authority: Such power as reposes in an agent by virtue of the agency itself. :Limited authority: Such authority as the agent has when he is bound by precise instructions. :Naked authority: That arising where the principal delegates the power to the agent wholly for the benefit of the former. :Ostensible authority: See Apparent authority. :Presumptive authority: See Implied authority. :Special authority: That which is confined to an individual transaction. Such an authority does not bind the principal, unless it is strictly pursued. :Unlimited authority: That possessed by an agent when he is left to pursue his own discretion. ::Authorize:: To empower; to give a right or authority to act. To endow with authority or effective legal power, warrant or right. People v. Young, 100 Ill.App.2d 20, 241 N.E.2d 587, 589. To permit a thing to be done in the future. It has a mandatory effect or meaning, implying the direction to act. "Authorized" is sometimes construed as equivalent to "permitted"; or "directed", or to similar mandatory language. Possessed of Authority; that is, possessed of legal or rightful power, the synonym of which is "competency". Doherty v. Kansas City Star Co., 143 Kan. 802, 57 P.2d 43, 45. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:01:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02483 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:01:09 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02480 for ; Wed, 15 Mar 2000 12:01:08 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id NAA26941; Wed, 15 Mar 2000 13:14:23 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA20794; Wed, 15 Mar 2000 13:14:20 -0500 (EST) Date: Wed, 15 Mar 2000 13:14:20 -0500 (EST) Message-Id: <200003151814.NAA20794@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Access control on text from Stephen King. The horror... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Stephen King just released a novella on the net, in the format of a proprietary reader (something called "Glassbook") which has access controls. There's an article at http://www.opencontent.net/read.html?postid=24 which discusses some of the consequences --- among other things, it has very aggressive copy prevention which will fail if you upgrade your processor (presumably using the processor-id feature on recent Intel chips) or change your disk configuration (so much for restoring backups after a crash). The advised workaround in these cases is to contact Glassbook customer support... which, as the author of the opencontent piece points out, will be cold comfort if, as with DIVX, the Glassbook story ends in chapter eleven. (Hmmm... How do you view a DIVX disk now that they're out of business? Have some people lost access to stuff they legitimately bought because of this?) A particular gem: To prevent unauthorized reading or copying of e-books, the Glassbook Reader does not allow you to read the same e-books from more than one computer or to copy e-book and data files from one computer to another. You can use the Glassbook Plus Reader to give or lend an e-book to another computer. *This feature is under construction.* There may be some fodder here for folks who'd like to argue that 17 USC 1201 is overbroad... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05587 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:29:19 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA05584 for ; Wed, 15 Mar 2000 12:29:13 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id KAA13958 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 10:39:51 -0800 Date: Wed, 15 Mar 2000 10:39:50 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments Message-ID: <20000315103950.Y13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315151402.20335.qmail@hotmail.com> <20000315102528.A1190@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit User-Agent: Mutt/1.0i In-Reply-To: <20000315102528.A1190@localhost>; from fenimore@roadrunner.com on Wed, Mar 15, 2000 at 10:25:29AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > Counter-counter Argument: There is no "the" copyright holder refered > to in § 1201. The idea that buying a device would confer authority to > view runs up hard against the fact that Sony has no way to guarantee that > it has obtained permission from every copyright holder of CSS'ed DVD > material. I think we are back to vague. Perhaps the DVD CCA warrants to Sony in the CSS license agreement that all content-producer CSS licensees (by that license) grant permission to all legitimate CSS hardware or software licensees to access their copyrighted content. Let's say you're the holder of the copyright in some movie. You want to put this movie on a DVD. You can burn it yourself without CSS (if you have the right authoring software). OK. Maybe you want to use CSS for some reason. Now you have to get a CSS license, or go to someone else who has a CSS license [or break CSS... :-)]. When you do this, what will you be asked to sign? Perhaps what you are asked to sign includes language to the effect that the copyright owner hereby grants a nonexclusive, worldwide, perpetual license to all past or future legitimate licensees of its said intellectual property to perform any normal access for purposes of viewing using a device subject to the terms of the CSS player license and licensed for that purpose by the DVD CCA or its predecessors-in-interest. I'm just making this up, but I'm not sure there is a reason to assume that the DVD CCA does _not_ require CSS authoring licensees to bind themselves and their CSS authoring customers to terms like that. It would be an awfully convenient way to handle the "authorization", wouldn't it? One can still argue that the average consumer would be totally unaware of this contract (because its terms are confidential and not even available to the consumer who asks about them!), and so the consumer could not tell whether or not some kind of access is "authorized". Nonetheless, some appropriate behind-the-scenes licensing and cross-licensing of the CSS technology (and keys), as well as the DVD logo, might ensure that there is a legal reality to support the naive intuition that players you buy in a store are, in fact, "authorized" as players for private performance, and that that authorization was explicitly (if secretly) given by the content providers who publish things you buy in a store. There is still the big problem of the cultural habit of assuming that something you buy in a store with a big company's logo on it is "authorized" and something you do yourself in your garage is "unauthorized". There is no reason that courts should consider technology that comes from Circuit City to be somehow automatically more legitimate than technology that comes from your garage, but if the average person has such an intuition, a court might say that the intuition is reasonable. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:43:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06985 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:43:04 -0500 Received: from hotmail.com (law2-f194.hotmail.com [216.32.181.194]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA06982 for ; Wed, 15 Mar 2000 12:43:00 -0500 Received: (qmail 28484 invoked by uid 0); 15 Mar 2000 18:55:48 -0000 Message-ID: <20000315185548.28483.qmail@hotmail.com> Received: from 205.147.249.59 by www.hotmail.com with HTTP; Wed, 15 Mar 2000 10:55:47 PST X-Originating-IP: [205.147.249.59] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments Date: Wed, 15 Mar 2000 13:55:47 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Paul Fenimore >>1. Authorization >> >>a. 1201(a)(2) is unconstitutionally vague because it does not describe >>how >>a user obtains authorization. Thus, the public is unable to determine how >>to avoid liability under the DMCA. >> >>Counter Argument: One avoids liability under the DMCA by going down to >>Circuit City and buying a Sony, some DVD's, and popping some popcorn, and >>watching these movies 'til your heart's content. > >Counter-counter Argument: There is no "the" copyright holder refered >to in § 1201. The idea that buying a device would confer authority to >view runs up hard against the fact that Sony has no way to guarantee that >it has obtained permission from every copyright holder of CSS'ed DVD >material. I think we are back to vague. Interesting. You are contending that authority cannot be passed through a "legitimate" DVD player (Sony) because the maker (Sony) cannot guarantee that Sony has received permission from every studio? I might agree with this. However, don't DVD's contain keys (I know little about the technical issues in the case) that enable the various players to play the DVD's. If so, would each DVD would only authorize the use of those keys? Is this the nexus between the 1201 case and the trade secret case (of which I know little)? Joshua ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:48:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07464 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:48:37 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA07461 for ; Wed, 15 Mar 2000 12:48:35 -0500 Received: (qmail 7163 invoked by uid 500); 15 Mar 2000 19:07:20 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 15 Mar 2000 19:07:20 -0000 Date: Wed, 15 Mar 2000 11:07:20 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source Code or Object Code? In-Reply-To: <20000315172454.27547.qmail@web507.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 15 Mar 2000, Bryan Taylor wrote: > > --- Kent Nguyen wrote: > > > If I remembered and what the injunction stated as well as the lawsuit > > file against several defendants that they've posted DeCSS source > > code to be taken down, namely 2600. > > I went back and read the injunction, the complaint, and several other > documents for the NY case. They don't seem to discriminate between > source code and object code. Nowhere that I could find does it state > whether the defendants posted object code or source code, nor do I see > any evidence that anyone thinks this is an important distinction. This > is highly odd. The fact that the judge does not discriminate between object code and source code is his lack of understanding of source code. The judge should be taught! Taken from BERNSTEIN V USDOJ: http://www.epic.org/crypto/export_controls/bernstein_decision_9_cir.html "First, it is not at all obvious that the government's view reflects a proper understanding of source code. ..." > > For example, the injunction says: > > 3.(c) "DeCSS" means any computer program, file or device that may be > used to decrypt or unscramble the contents of DVDs that are protected, > or otherwise to circumvent the protection afforded by, [sic] CSS and > that permits the copying of the contents of any portion thereof. > > By my reading, the judge and plaintiffs lump the DeCSS source code in > with the object code and both are banned. > > If anybody has other information, please post it. > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > > From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 12:59:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA09002 for dvd-discuss-outgoing; Wed, 15 Mar 2000 12:59:07 -0500 Received: from hotmail.com (law2-f10.hotmail.com [216.32.181.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA08999 for ; Wed, 15 Mar 2000 12:59:05 -0500 Received: (qmail 71178 invoked by uid 0); 15 Mar 2000 19:11:57 -0000 Message-ID: <20000315191157.71177.qmail@hotmail.com> Received: from 205.147.249.59 by www.hotmail.com with HTTP; Wed, 15 Mar 2000 11:11:57 PST X-Originating-IP: [205.147.249.59] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... Date: Wed, 15 Mar 2000 14:11:57 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "Robert S. Thau" >There's an article at > > http://www.opencontent.net/read.html?postid=24 > I read this article. The disdain for authority apparent in this article played a pivotal role in the defendants' loss at the preliminary injunction stage. The judge saw concrete examples of the defendants unreasonableness (ie. attempts to get the genie out of the bottle). I know many are hot to trot over open source, but that doesn't mean the rest of the world automatically agrees with you. More to the point, the open source community does not convince anyone that they are right by being contempuous of everyone's rules but their own. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 13:09:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10977 for dvd-discuss-outgoing; Wed, 15 Mar 2000 13:09:43 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA10974 for ; Wed, 15 Mar 2000 13:09:42 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id UAA08899 for ; Wed, 15 Mar 2000 20:22:28 +0100 (CET) From: "tser" To: Subject: [dvd-discuss] Region Protection And Win2k Driver Date: Wed, 15 Mar 2000 20:08:21 +0100 Message-ID: <000001bf8eb1$d5693260$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) Importance: Normal In-Reply-To: <20000315102516.N25270@linuxpower.org> X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hi, Just a humble question, has there been any case yet, of any manufactur for unlawfully removing the region code protection as well as the "Don't allow it to copy To-Video-Tape Protection"? Just for your information, for a little bit more cash underneath thehands, you can buy here The Netherlands a Brand new DVD player with these neath features. But you knew that already. Allthough first seperated in markets, they are even selling actually a lot of region code 1 dvd's in Holland in Stores. Now for the question i came for. If (somebody) Releases a win2000 device driver, which allows people just to drag and drop files from the dvd to the disk without even running a program, based on the information gained from the deccs source. Would that influence the Current Court process ? And moreover, could the author of that program also be sued ? Regards, Tser. -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of greslin@linuxpower.org Sent: Wednesday, March 15, 2000 4:25 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE On Tue, Mar 14, 2000 at 09:29:30PM -0800, Bryan Taylor wrote: > > > --- greslin@linuxpower.org wrote: > > We've already been over this, so I'm not going to get into it again > > other than to say - again - that Jon had every motivation to be > > less than truthful in those interviews. I'm not saying he lied. > > I'm saying that to simply take those interviews on faith is to be > > more than a bit naive about how people work. > > What you are basically saying implies that anyone accused of a crime is > not trustworthy. I'm saying people should be trusted if what they say > is plausible and there is no evidence to the contrary. Of course this is *not* what I'm saying. The rest of your post indicates that you understand this. It's a shame you didn't go back and revise this opening line. What I am saying is that trust shouldn't be an issue here. Jon's testimony is exactly that - a testimony. In gauging M.O.R.E.'s intent, simply saying "Jon said it, I believe it, that settles it" is nothing more than religious faith. If all we have is are after-the-fact interviews in the Linux press, and then evidence that casts some doubt on those assertions, we need to follow up on that evidence. This is why we need to get in touch with Derek. The posts made to livid-dev in October 1999, while not conclusive, cast doubt. This can be brought back to bite us in court. Do you really want to go in front of the judge and say, "Jon said it in the press. We should trust him. Why would he lie?" ? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 13:19:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12248 for dvd-discuss-outgoing; Wed, 15 Mar 2000 13:19:32 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA12245 for ; Wed, 15 Mar 2000 13:19:30 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id MAA18105 for ; Wed, 15 Mar 2000 12:35:52 -0600 Date: Wed, 15 Mar 2000 12:35:52 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments In-Reply-To: <20000315151402.20335.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > The two strongest arguments in the 1201 case are as follows: > 1. Authorization This definitely sounds like the strongest approach we've come up with yet. Congress did not define how acces was granted, and the MPAA did not explicitly grant access at any step. If it is determined that the copyright holder has the authority to designate under what terms access is granted, then, in this case, the MPAA did not properly establish what access was premitted to the user and under what conditions the access was granted. Since the authority to access was not defined by the MPAA, then If it goes unspecified and the default is to assume that no access was given, then everybody who ever played a DVD is a criminal. The other reasonable default is that unrestricted access is assumed to be given at the time of purchase. Anything in between was undefined by congress and the MPAA which makes it subject to judicial interpretation. > Counter Argument: One avoids liability under the DMCA by going down to > Circuit City and buying a Sony, some DVD's, and popping some popcorn, and > watching these movies 'til your heart's content. By the same token, I go down to Circuit City, buy a DVD player for my linux machine, download the software necessary to make it work, pop some popcorn and watch moviews 'til my heart's content. > Practical Matter: Copyright owners can explicitly grant authorization at > another point. For example, the authorization could flow through the > purchase of a DVD player, or the licensing of the particular key, etc. Or in the case of DIVX, acces can be purchased for limited time periods as desired by the consumer. > Counter Argument: Congress intended to do exactly what it did: prohibit > unauthorized access (paracopyright). The appropriate redress is in > Congress, not the courts. I would agree that Congress has designated that copyright holders have the right to control access to their media. Whether this is fair and reasonable is something to be determined in Congress. The only immediate conflict I see here is that of a copyright holder limiting fair use access to media. In the case of DVD, this does not seem to be the case because their are ways to excerpt video from the DVD for criticism, etc. If it can be resonably interpreted that Congres has intended to give the copyright holder the right to limit access to "authorized users", then the crux of the issue is whether the use of CSS IMPLIES authority to view is attached to having an authorized CSS decoding implementation. And if it is considered to imply that, then the question is, does this need to be explicitly stated or is implied authority sufficient. That issue would seem to be a matter of legal interpretation since Congress really didn't say. One final thought on CSS as an access control device. What is the difference between data that is encrypted as opposed to data that is encoded with a proprietary CODEC? Is Quicktime an access control device? If not, why is CSS an access control? In both cases you need it to accomplish the basic act of playing the media, so what is the legal difference between the two? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 13:22:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12421 for dvd-discuss-outgoing; Wed, 15 Mar 2000 13:22:20 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA12418 for ; Wed, 15 Mar 2000 13:22:15 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id MAA18155 for ; Wed, 15 Mar 2000 12:38:41 -0600 Date: Wed, 15 Mar 2000 12:38:41 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Now, I just looked at the front of my "Iomagic MagicDVD 6X" and noted > that the tray displays a DVD-ROM logo. My ATI DVD player displays a > DVD-Video logo upon startup. > > Now, let's look at the implied contract/guarantee embedded in that > sale. The DVDs are not guaranteed to work with the Iomagic DVD drive; > they are guaranteed to work with my ATI-DVD player. > > Suppose, now, that I didn't have a Windows partition, and no > "commercial" DVD-Video player for Linux. If I bought the discs, I > would have no right to expect compatibility, merely because I have a > DVD-Rom drive. Interesting... Okay, here's a question for you and the audience. Can anybody find a DVD player which posseses that logo, either on its exterior or in the instructions or box that came with it? So long as there is one that does, then this point should be invalid. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 13:46:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17043 for dvd-discuss-outgoing; Wed, 15 Mar 2000 13:46:01 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17040 for ; Wed, 15 Mar 2000 13:45:57 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA18984 for ; Wed, 15 Mar 2000 13:02:25 -0600 Date: Wed, 15 Mar 2000 13:02:25 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DIVX vs. DVD? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've mentioned DIVX in passing a few times throughout discussions here, and I keep wondering if DIVX serves as a good contrast to DVD to illustrate the issue of access to a copyrighted work and the intent of DMCA. When you purchase a DIVX disc, you are granted authorized access to play that disc for a period of 48 hours (if I recall accurately). After the initial purchase, you may purchase additional viewing periods for a small fee. You can also (at the discretion of the copyright holder) purchase permanent viewing rights for the disc. With DIVX there is a clear architecture of authority involved. To use DIVX you must have a credit card registered with DIVX, and your DIVX player communicates with them to request authorization. You are only permitted to play the disc on players registered to your account, so part of the establishment of authority is identifying your authorized player to DIVX. As soon as you are no longer an authorized user (time expired, not enough credit to buy more time), then access to the disc is nullified. If somebody was to break the encoding for DIVX to permit access to the disc without having to go through these explicit authorizations, then it seems that the DMCA very much applies. The DIVX people set up a clear architecture of authority and enforced it through tight control of the players and a centralized database of access authority. Now, let's look at DVD. With DVD, there is no clear distinction about when access is granted. Obviously if you stole it from the local store, that would be theft, but once you've purchased it, there's no clear architecture defining when you are authorized to view the content. Is it when you buy the disc? Is it only on certain players? Is it with only specific software? The DVD folks have never said. In the case of DIVX, the vagueries of who is authorized are very clearly determined by the architecture. With DVD, this is not clearly established. I think this an important concept, I'm just not sure how to turn it into a legal argument (of it is possible at all). ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 14:03:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18648 for dvd-discuss-outgoing; Wed, 15 Mar 2000 14:03:07 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18645 for ; Wed, 15 Mar 2000 14:03:07 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id PAA19089 for ; Wed, 15 Mar 2000 15:16:24 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA21766; Wed, 15 Mar 2000 15:16:20 -0500 (EST) Date: Wed, 15 Mar 2000 15:16:20 -0500 (EST) Message-Id: <200003152016.PAA21766@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... In-Reply-To: <20000315191157.71177.qmail@hotmail.com> References: <20000315191157.71177.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > >From: "Robert S. Thau" > >There's an article at > > > > http://www.opencontent.net/read.html?postid=24 > > > > I read this article. The disdain for authority apparent in this article > played a pivotal role in the defendants' loss at the preliminary injunction > stage. The judge saw concrete examples of the defendants unreasonableness > (ie. attempts to get the genie out of the bottle). I know many are hot to > trot over open source, but that doesn't mean the rest of the world > automatically agrees with you. More to the point, the open source community > does not convince anyone that they are right by being contempuous of > everyone's rules but their own. Sigh... the reason I pointed it out was to show that access controls are proliferating in the marketplace, and that we have an example here where they are applied to text, which may make it easier to draw out useful parallels to prior case law which discusses the right to read and reproduce text specifically (as opposed to, say, performance rights). I did not mean to suggest presenting linh's arguments straight to Judge Kaplan. That said, your reaction to the article is different enough from my own that I honestly find myself wondering if we were, in fact, reading the same piece. As far as I can see, it does not suggest that making unauthorized copies is a legitimate activity (in fact, when it points out that the early marked-floppy scheme "sounds good in theory", it explicitly acknowledges that scheme has a legitimate purpose). It just pointed out that copy-protection schemes have been tried in the past, and haven't prevented unauthorized copying, while they have inflicted serious inconvenience on law-abiding purchasers of legitimate copies. It calls Glassbook "bozos" not because they want to prevent unauthorized copying, but because they're doing it in a way which has proven in the past to be both obnoxious and completely ineffective. Is that what you're calling disdain for authority, or was it just the strong language? BTW, I don't think linh was speaking for the open-source community, or even trying to --- I'm not sure he's even a member of the open-source community (he is, FWIW, a Windows user). But if he was trying to articulate that community's concerns, he probably would have mentioned that the thing is closed source itself and runs only on Windows... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 14:05:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18947 for dvd-discuss-outgoing; Wed, 15 Mar 2000 14:05:29 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA18943 for ; Wed, 15 Mar 2000 14:05:27 -0500 Received: (qmail 22431 invoked by uid 60001); 15 Mar 2000 20:18:46 -0000 Message-ID: <20000315201846.22430.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Wed, 15 Mar 2000 12:18:46 PST Date: Wed, 15 Mar 2000 12:18:46 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Two Arguments - Authority To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > 1. Authorization > > a. 1201(a)(2) is unconstitutionally vague because it does not > describe how a user obtains authorization. Thus, the public is unable > to determine how to avoid liability under the DMCA. I think "how" to obtain authorization is no different than that of any other nonexclusive copyright authorization - you need some communication of permission from the copyright holder. I suppose this could be any written or even verbal "you can access" statement. The defect in the law is not "how" but "when" and "who" can authorize. 1201(a)(3)(A) says you need the authorization of 'the' copyright holder. However, multiple copyright holders exist and share the same access control measure, possibly even on the same DVD. Who do you ask for permission? ANY copyright holder using the measure? or is it ALL copyright holders? or is it the copyright holder of the measure itself? The law doesn't list access control as an exclusive right of the copyright holder in section 106, and certainly doesn't provide that this exclusive right survives first sale. In the absense of textual guidance, the minimum protection should be assumed, since all copyright protection is statutory. Moreover, some things that are access controlled are not be copyright protected. They might be facts (movie credits), government notices (FBI warning), public domain works (Charlie Chaplin movies), functional features (user interface controls) or any number of other things. > Counter Argument: One avoids liability under the DMCA by going down > to Circuit City and buying a Sony, some DVD's, and popping some > popcorn, and watching these movies 'til your heart's content. This is exactly the kind of product 'tying' that the Supreme Court rejected in US v Paramount. The MPAA cannot use intellectual property laws to condition the use of one already purchased product with the purchase of another. This seeks to extend intellectual property protection to a work which is not the DVD and thus not the writing or invention in question. > b. 1201(a)(2) is not violated by DeCSS because authorization is > implicitly granted at some point (perhaps sale of the DVD). Once you realize that authoriziation to view must included authorization to access, then the grant is explicit, not implicit. The copyright notice on nearly all DVD's says "for home viewing". Certainly a reasonable consumer who pays for the DVD and reads the notice believes that they have permission to access the work as long as they don't infringe the copyright. > Counter Argument: Authorization is not granted until the actual > access occurs. But see discussion supra Part 1.a (discussing inability > of accesser to determine liability). Authorization must involve some act of communication between the copyright holder and the user to express permission. No such exchange occurs at access time. In fact, the only such exchange is the writing on the DVD case. One could argue that the key itself communicates permission, but the title key comes on the DVD. > Practical Matter: Copyright owners can explicitly grant > authorization at another point. For example, the authorization could > flow through the purchase of a DVD player, or the licensing of the > particular key, etc. True, permission can be granted in multiple ways. In order for this arguement to carry water, you would have to show that this is the ONLY way that authority is granted. Certainly nothing puts the consumer on notice of this. A reasonable consumer thinks 'viewing' permission includes access permission. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 14:22:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23566 for dvd-discuss-outgoing; Wed, 15 Mar 2000 14:22:05 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA23563 for ; Wed, 15 Mar 2000 14:22:04 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA14109 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 12:32:38 -0800 Date: Wed, 15 Mar 2000 12:32:38 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region Protection And Win2k Driver Message-ID: <20000315123238.E13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315102516.N25270@linuxpower.org> <000001bf8eb1$d5693260$e58e97c2@tser> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000001bf8eb1$d5693260$e58e97c2@tser>; from tser@dwaal.net on Wed, Mar 15, 2000 at 08:08:21PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tser writes: > Hi, > > Just a humble question, has there been any case yet, of any manufactur for > unlawfully removing the region code protection as well as the "Don't allow > it to copy To-Video-Tape Protection"? If that does happen, it would probably be under straight breach of contract, not anticircumvention. The manufacturers are supposed to sign a contract when they license CSS which forbids them to do this. (That is a great argument against closed standards; they give other people all kinds of power to contractually limit what you can do.) DeCSS is more "exciting", and has attracted all of the publicized legal heat so far. Indeed, region-free hardware and software has been publicized quite a bit without incurring any major trouble so far; I saw ZDTV broadcast a program where they talking about how to get region-free software utilities. So presumably ZDTV was convinced that such things are legal (at least for end-users, who aren't bound by a CSS license). It might be argued (and has been argued here) that region codes themselves do not protect any legally recognized right of a copyright owner, because of the "first sale doctrine" and some claims that a legally purchased copyrighted work which was sold to a member of the public can probably be imported or exported even if it makes the copyright holder unhappy. Since Macrovision has been around longer, I'd like to know about the legal status of hardware and software (or plans for hardware) which disable it. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 14:38:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25975 for dvd-discuss-outgoing; Wed, 15 Mar 2000 14:38:51 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25972 for ; Wed, 15 Mar 2000 14:38:49 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA20904 for ; Wed, 15 Mar 2000 13:55:18 -0600 Date: Wed, 15 Mar 2000 13:55:17 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Interesting... Okay, here's a question for you and the audience. Can > anybody find a DVD player which posseses that logo, either on its exterior > or in the instructions or box that came with it? So long as there is one > that does, then this point should be invalid. Sorry, clairifcation of my previous statement. A COMPUTER DVD player is what I meant :) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:23:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31405 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:23:10 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA31402 for ; Wed, 15 Mar 2000 15:23:09 -0500 Received: (qmail 22157 invoked by uid 60001); 15 Mar 2000 21:36:21 -0000 Message-ID: <20000315213621.22156.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Wed, 15 Mar 2000 13:36:21 PST Date: Wed, 15 Mar 2000 13:36:21 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Two Arguments - Exclusive Rights To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > 2. Exclusive Rights > > a. 1201 allows copyright owners to authorize access. However, 106 > provides that copyright owners may authorize the exclusive rights > contained in 106, which rights do not include access. Thus, 1201 has > the practical effect of granting copyright owners a new exclusive right: > "access." Such was not the intent of Congress. I think Congress DID intend to create such a right, but they did it in a defective way and failed to specify the needed framework for the mechanics of this right. For example, does it survive first sale? Does it apply for a 'limited time'? How is it governed when access control systems are shared by different copyright holders? These questions are not answered. > Counter Argument: Congress intended to do exactly what it did: > prohibit unauthorized access (paracopyright). The appropriate redress > is in Congress, not the courts. The copyright clause doesn't give Congress any authority to protect 'access'. Congress recognized this and that's why they refer to 1201(a) as a 'paracopyright'. There is no paracopyright power given to Congress in the Constitution. Access may or may not be a substantial impact on interstate commerce depending on the use that follows it. Congress should narrow it's legislation to avoid overbreadth, since first amendment issues are at play. If the subsequent use is "fair use" then the commercial impact doesn't harm the monopoly of the copyright holder and certainly is not a "substantial" effect on commerce, as required. In this case, access after first sale affects no commerce at all, since DVD's are not a pay-per-use device. Moreover, distributing an access tool may be "commercially significant", but the constitutional standard requires a "substantial affect". Following Wickard v Filburn as reviewed in US v Lopez, the law would have to be narrowly tailored to specifically stabilize DVD player software prices in order to stop "do it yourself" DVD players which are not themselves sold. Unlike the price of wheat during the depression, DVD player software prices are not a critical national priority that warrent invasive and narrow regulation. If Congress thought this was the case, they could pass a "DVD Player Price Regulation Act", but they haven't. > b. [Fill in your pet argument that 1201 violates the First > Amendment/Fair Use. Have fun. Go wild]. Copyright Constitutionally restricts speech as it simultaneously seeks to be the engine of expression. Paracopyright and the commerce power have no such scope. Indeed the copyright power is a limited power precisely because delicate issues are at stake. The 2nd Circuit has repeated several times that fair use accommodates the First Amendment in the copyright arena. What is the parallel concept in 'paracopyright' that balances the commerce power against the first amendment? Even in Wickard, the growing of wheat was not a literary work, the way a computer program like DeCSS is. Under copyright law, distribution of DeCSS is the exclusive right of MoRE, and necessarily so because of the first amendment freedom of the press to distribute 'literary works'. Numerous Court holdings site Congress' intention to consider computer programs, even in object code form, as literary works. The 2nd Circuit in Computer Associates v Altai 982 F.2d 693 even gave a constructive method for how to identify the non-literal expressive elements of the program. Moreover, 1201(c)(4) provides "Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using ... computing products." This shows Congress intention is clearly not to restrict the distribution of computer programs. A computer program is simply not a 'black box'. DeCSS is neither 'black' (you can see inside by reading the source code) nor is it a 'box'. Finally, Kaplan clearly overstepped his powers under 1203 by imposing a prior restraint after 'balancing' the expressiveness of DeCSS against copyright without putting this on the scale: "(b) Powers of the Court. - In an action brought under subsection (a), the court - (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;" __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:26:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31518 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:26:45 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA31505 for ; Wed, 15 Mar 2000 15:26:43 -0500 Received: (qmail 14307 invoked by uid 60001); 15 Mar 2000 21:40:02 -0000 Message-ID: <20000315214002.14306.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Wed, 15 Mar 2000 13:40:02 PST Date: Wed, 15 Mar 2000 13:40:02 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] ACCESS as USE To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > If all we have is are after-the-fact interviews in the Linux press, > and then evidence that casts some doubt on those assertions, we > need to follow up on that evidence. This is why we need to get in > touch with Derek. The posts made to livid-dev in October 1999, > while not conclusive, cast doubt. This can be brought back to bite > us in court. I haven't seen these posts. By all means if they (or anything else) cast doubt on Johansen's Linux explaination, then put them in the record here. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:29:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31579 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:29:30 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31576 for ; Wed, 15 Mar 2000 15:29:29 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id QAA07116 for ; Wed, 15 Mar 2000 16:42:51 -0500 (EST) Message-Id: <4.2.2.20000315161857.00bc7650@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 15 Mar 2000 16:42:49 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Two Arguments In-Reply-To: References: <20000315151402.20335.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 12:35 PM 3/15/00 -0600, sterno@bigbrother.net wrote: >One final thought on CSS as an access control device. What is the >difference between data that is encrypted as opposed to data that is >encoded with a proprietary CODEC? Is Quicktime an access control >device? If not, why is CSS an access control? In both cases you need it >to accomplish the basic act of playing the media, so what is the legal >difference between the two? One take on the difference between access control and copy control comes from the District Court in Seattle that granted a partial preliminary injunction in RealNetworks v. Streambox: RealNetworks, Inc. v. Streambox, Inc. No. 2:99CV02070 (W.D. Wash. Jan. 18, 2000) The court held the Streambox VCR, which allowed users to download streaming audio or video files from RealServers, in violation of s. 1201(a)(2) and 1201(b). The VCR bypassed both a "Secret Handshake" that only RealPlayer could supply and a "Copy Switch." Bypassing the Secret Handshake required to gain access to streaming media put the device in violation of 1201(a)(2), while ignoring the state of the Copy Switch, to allow recording even when the author had switched copying off, violated 1201(b). The court enjoined distribution of the VCR. The same court found that format alone was not a copy protection technology. The judge refused to enjoin the Streambox Ripper, a device that converted files from Real's format to WAV or MP3, even though Real claimed the proprietary format protected a copyright owner's exclusive right to make derivative works. There's probably even more we can take from this case. --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:47:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02201 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:47:03 -0500 Received: from mail2.teleport.com (mail2.teleport.com [192.108.254.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA02198 for ; Wed, 15 Mar 2000 15:47:01 -0500 Received: (qmail 20653 invoked from network); 15 Mar 2000 22:00:14 -0000 Received: from b48-01-11.pdx.du.teleport.com (HELO ?216.26.6.84?) (216.26.15.11) by mail2.teleport.com with SMTP; 15 Mar 2000 22:00:14 -0000 X-Sender: jaed@mail83.pair.com Message-Id: In-Reply-To: <20000315064318.2100.qmail@web504.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 15 Mar 2000 13:55:58 -0800 To: dvd-discuss@eon.law.harvard.edu From: "Jeanne A. E. DeVoto" Subject: [dvd-discuss] Licensing fee for CSS for players? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:43 PM -0800 3/14/2000, Bryan Taylor wrote: >The second, more sinister reason for CSS is that the movie industry >wants an access control system so that they can tie playback to >separately purchased players that leech off of the DVD movie copyrights >to create another revenue stream through licencing fees. Now I've read one FAQ that indicated that CSS licensing for player manufacturers is free (though DVD publishers must pay a per-disc fee), but several comments from various people to the effect that it costs big bucks. DVD-CCA's site itself seems to indicate that there is a licensing fee, but doesn't specify how much. Does anyone know the fee arrangement for DVD player manufacturers? -- jeanne a. e. devoto ~ jaed@jaedworks.com http://www.jaedworks.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02692 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:50:36 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA02599 for ; Wed, 15 Mar 2000 15:50:35 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA23919 for ; Wed, 15 Mar 2000 15:07:04 -0600 Date: Wed, 15 Mar 2000 15:07:04 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region Protection And Win2k Driver In-Reply-To: <20000315123238.E13379@cty-alum.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Since Macrovision has been around longer, I'd like to know about the > legal status of hardware and software (or plans for hardware) which > disable it. An interesting related story is that somebody I know bought a DVD player and the output of it was protected using Macrovision. The TV he has is one of those VCR/TV combos. So, when he tried to plug it in, he discovered that he couldn't view the movie. So, basically his choices were to either give up on DVD all together, or buy a device to circumvent macrovision. He got such a device and it has been working perfectly ever since. Does he copy DVD's? No. This is just so he can watch the damn things in the first place. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:53:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02900 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:53:17 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA02897 for ; Wed, 15 Mar 2000 15:53:15 -0500 Received: (qmail 18312 invoked by uid 60001); 15 Mar 2000 22:06:37 -0000 Message-ID: <20000315220637.18311.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Wed, 15 Mar 2000 14:06:37 PST Date: Wed, 15 Mar 2000 14:06:37 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Two Arguments To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > I might agree with this. However, don't DVD's contain keys (I know > little about the technical issues in the case) that enable the > various players to play the DVD's. If so, would each DVD would > only authorize the use of those keys? Is this the nexus between > the 1201 case and the trade secret case (of which I know little)? There are actually two sets of keys. There are player keys and title keys. Every DVD player vendor licences a 'player' key from the DVD CCA. The DVD provides the title key which is encrypted in a way that all of the 400 player keys can decrypt. This title key is then used to decrypt the actual movie. Every movie has its own title key. DeCSS was created from the Xing player key. It uses this key to get the title key off of the DVD and then uses the title key to unlock the movie. I think in some sense the scope of the 'circumvention' done by DeCSS is at most to retreive the title key. The movie is actually watched by obtaining the purchased key from it's natural location. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 15:54:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03024 for dvd-discuss-outgoing; Wed, 15 Mar 2000 15:54:19 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA03021 for ; Wed, 15 Mar 2000 15:54:18 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA30543 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 16:07:39 -0600 Date: Wed, 15 Mar 2000 16:07:39 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two Arguments - Authority Message-ID: <20000315160739.A30481@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315201846.22430.qmail@web502.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000315201846.22430.qmail@web502.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Mar 15, 2000 at 12:18:46PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 12:18:46PM -0800, Bryan Taylor wrote: > > The defect in the law is not "how" but "when" and "who" can authorize. > 1201(a)(3)(A) says you need the authorization of 'the' copyright > holder. However, multiple copyright holders exist and share the same > access control measure, possibly even on the same DVD. Who do you ask > for permission? ANY copyright holder using the measure? or is it ALL > copyright holders? or is it the copyright holder of the measure itself? Every time this is discussed it exposes the same problem in 1201: 1. Decoders are illegal if they aren't authorized by "the" copyright holder. 2. Yet the copyright holders don't sell decoders, electronics and software companies do. 3. Every decoder works on every encrypted copyrighted work. Could someone comment as to what's supposed to happen when a law is enacted that is implicitly self-contradicting or otherwise confused enough to be unenforceable? Let's say congress enacted a law that said: (a) It shall be illegal to distribute blue t-shirts. (b) The restaurant shall determine if a t-shirt is blue. Now that's obviously confused and implicitly self-contradictory because there's no logical way that (b) can be used to enforce (a). What's the mechanism for removal of that law? Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 16:21:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07784 for dvd-discuss-outgoing; Wed, 15 Mar 2000 16:21:18 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA07781 for ; Wed, 15 Mar 2000 16:21:16 -0500 Received: (qmail 863 invoked by uid 60001); 15 Mar 2000 22:34:38 -0000 Message-ID: <20000315223438.862.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Wed, 15 Mar 2000 14:34:38 PST Date: Wed, 15 Mar 2000 14:34:38 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Source Code or Object Code? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Kent Nguyen wrote: > > --- Kent Nguyen wrote: > The fact that the judge does not discriminate between object code and > source code is his lack of understanding of source code. The judge > should be taught! Perhaps it has more to do with the fact that he considers both to be technology that falls within the scope of 1201(a). Kaplan basically says he doesn't care if it is speech because copyright limits speech. Read his "balancing" explaination in his memorandum. Again, you have not provided any evidence that the DeCSS distributed by the defendants in the NY case was source code. Suppose Kaplan was to grant that DeCSS source code was speech otherwise protected by the first amendment. How would you continue your arguement? > Taken from BERNSTEIN V USDOJ: > http://www.epic.org/crypto/export_controls/bernstein_decision_9_cir.html > > "First, it is not at all obvious that the government's view > reflects a proper understanding of source code. ..." I went to graduate school with Dan Bernstein, so you're not going to impress me with one sentence quotes from his cases. You should also read Junger v. Daley, 8 F. Supp.2d 708, 715-18 (N.D. Ohio 1998) for an alternate view. I strongly support the 9th ciruits ruling, but the issue here is a bit more sophisticated. Court precedents are full of the carnage of defendants that argued speech as a defense to intellectual property violation. You could also read my post from a month ago for an explaination of the reasoning in Bernstein: http://eon.law.harvard.edu/archive/dvd-discuss/msg00047.html __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 16:44:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11124 for dvd-discuss-outgoing; Wed, 15 Mar 2000 16:44:06 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA11121 for ; Wed, 15 Mar 2000 16:44:05 -0500 Received: (qmail 17786 invoked by uid 60001); 15 Mar 2000 22:57:27 -0000 Message-ID: <20000315225727.17785.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Wed, 15 Mar 2000 14:57:27 PST Date: Wed, 15 Mar 2000 14:57:27 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] RealNetworks v Streambox DMCA case To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Wendy Seltzer wrote: > One take on the difference between access control and copy control > comes from the District Court in Seattle that granted a partial > preliminary injunction in RealNetworks v. Streambox: Wendy, Is there any way to find out what other cases are "out there" that reference the DMCA? Also, I've started collecting some cases (I added this one to my collection). I plan to summarize and provide choice quotes for some of them. Is there a way we could open a folder on the openlaw website for this? I would be happy to moderate/edit contribututions to it. I'll have much more to say about this case, which is clearly VERY important after I read it thouroughly. Thanks for drawing our attention to it! __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 16:47:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11696 for dvd-discuss-outgoing; Wed, 15 Mar 2000 16:47:27 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA11693 for ; Wed, 15 Mar 2000 16:47:26 -0500 Received: (qmail 31618 invoked by uid 502); 15 Mar 2000 23:03:08 -0000 Date: Wed, 15 Mar 2000 18:03:08 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ACCESS as USE Message-ID: <20000315180308.D25270@linuxpower.org> References: <20000315214002.14306.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000315214002.14306.qmail@web503.mail.yahoo.com>; from Bryan Taylor on Wed, Mar 15, 2000 at 01:40:02PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 01:40:02PM -0800, Bryan Taylor wrote: > > --- greslin@linuxpower.org wrote: > > > If all we have is are after-the-fact interviews in the Linux press, > > and then evidence that casts some doubt on those assertions, we > > need to follow up on that evidence. This is why we need to get in > > touch with Derek. The posts made to livid-dev in October 1999, > > while not conclusive, cast doubt. This can be brought back to bite > > us in court. > > I haven't seen these posts. By all means if they (or anything else) > cast doubt on Johansen's Linux explaination, then put them in the > record here. No need. A perfectly adequate record is here: http://livid.on.openprojects.net/pipermail/livid-dev/1999-October/thread.html Anyone - including you - who wishes to read these posts can look them up here. Cutting and pasting them into the list would only take them out of context. As I and several others have stated, there is nothing in the livid-dev list that flatly contradicts what Jon is saying. This is one reason why I've stopped short of calling him a liar - the evidence isn't there for it. Unfortunately, the evidence doesn't back him the other way, either. And anyone who takes the time to read through the October 99 livid-dev list will quickly see why some of us feel it's premature and naive to take Jon's word as an article of faith. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 16:47:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11701 for dvd-discuss-outgoing; Wed, 15 Mar 2000 16:47:37 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA11698 for ; Wed, 15 Mar 2000 16:47:36 -0500 Received: from mindspring.com (user-2ivf28s.dialup.mindspring.com [165.247.137.28]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id SAA29703 for ; Wed, 15 Mar 2000 18:00:54 -0500 (EST) Message-ID: <38D01545.1AE2A15D@mindspring.com> Date: Wed, 15 Mar 2000 17:57:09 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-list Subject: [dvd-discuss] Circumvention or Access? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ok to reiterate. Does DeCSS circumvent or access? If access that that all we need to show. If circumvent then we'd have to come up with some other defense. I'll try my hand at the argument for access. MPAA, DVD-CCA side. Circumvent. Only licensed DVD-Players are authorized to access CSS encrypted data. Our side (one possibility): Access. The act of publication (affixing the data in a tangible form avaliable for sale to the public, implies the authority of access (only one kind of access) to the public transferred at time of sale. 1) Authority at publication and authority at sale. a) I argue if authority of access is granted to the public at publication then anyone (even someone who has not even purchased a single DVD) can write any sort of CSS defeating program. Hense DeCSS is authorized. b) The nature of CSS. Players hold keys to decrypt the data, hense defeating CSS for one DVD means you get to read them all (or most anyway), but that's not our fault. DVD-CCA should have come up with a better scheme. c) It can be easily argued the authors had at least 1 legally purchased copy of a DVD. 2) The purpose of DeCSS. The purpose principally is to decrypt the data on a DVD. That is to even use DeCSS one must have (legally) purchased. a DVD. CSS is an encryption of the file system (check this) not just the MPEG data; that is the sectors containing .vob data are encrypted directly, thus CSS is applicable to the tangible DVD only. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 16:55:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13068 for dvd-discuss-outgoing; Wed, 15 Mar 2000 16:55:21 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA13065 for ; Wed, 15 Mar 2000 16:55:20 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id AAA22475 for ; Thu, 16 Mar 2000 00:08:41 +0100 (CET) From: "tser" To: Subject: RE: [dvd-discuss] Region Protection And Macrovision Date: Wed, 15 Mar 2000 23:54:35 +0100 Message-ID: <000101bf8ed1$6feaef80$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) Importance: Normal In-Reply-To: <20000315123238.E13379@cty-alum.org> X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >> unlawfully removing the region code protection as well as the "Don't allow >> it to copy To-Video-Tape Protection"? >Since Macrovision has been around longer, I'd like to know about the >legal status of hardware and software (or plans for hardware) which >disable it. There are several Stores on the internet Selling these "upgrades" as well as offial stores them selfs. They tend to try to sell you a patched drive in several official stores also, promoting them as more open... If required, i could post a list of several of stores who does so. I have included for yours information lists with patched (region) and macrovision protection models. I was suprised to find out that in almost _every_ model the macrovision was patched. This looks almost as if the manifactures made it real very easy to do so. (could it be the selling thing ? afraid a customer would not buy their drives if there is no patch for ? Some patches are known to be only pressing several buttons on a repeative way... Regards, Tser. The regicode for the following drives are altered by manipluations : AKAI DV2000 98ak1 AKAI DV3000 98ak1 DENON DVD 2000 98101 DENON DVD 2500 98361 DENON DVD 3000 98D3K DENON DVD 5000 98D5K KENWOOD DV-S701 98KEN KENWOOD DVD 3020 98361 KENWOOD DVD 5010 98KEN KENWOOD DVD 5020 98361 KENWOOD DVD 9010 98KEN PANASONIC A100 98101 PANASONIC A110 98311 PANASONIC A130 98131 PANASONIC A150 98351 PANASONIC A160 98361 PANASONIC A300 98101 PANASONIC A310 98311 PANASONIC A350 98351 PANASONIC A360 98361 PANASONIC L10E 9810E PANASONIC L50E 98361 PANASONIC P10E 9810E PANASONIC P10U 9810U PIONEER DV-414 98415 PIONEER DV-515 98516 PIONEER DV-525 98526 PIONEER DV-717 98718 PIONEER DV-909 98919 PIONEER DV-919 98919 PHILIPS DVD705 98706 PHILIPS DVD710-001 98731 PHILIPS DVD710-002 98931 PHILIPS DVD730-002 98731 PHILIPS DVD730-004 98931 PHILIPS DVD735 98931 PHILIPS DVD750 98951 PHILIPS DVD930-002 98731 PHILIPS DVD930-004 98931 PHILIPS DVD935 98931 PHILIPS DVD950 98951 PHILIPS DVD955 98951 SAMSUNG 707 98T3K SAMSUNG 907 98T3K SONY DVP-S325 98716 SONY DVP-S325 98726 SONY DVP-S325 (NEW FIRMWARE) 98327 SONY DVP-S525 98726 SONY DVP-S525 (New firmware) 98527 SONY DVP-S715 98716 SONY DVP-S725 98726 SONY DVP-S725 (NEW FIRMWARE) 98727 SONY DVP-S7700 99771 TEAC DVD 1000 98TE1 THOMSON DTH 1000 98101 THOMSON DTH-2000 98T2K THOMSON DTH-2500 98T2K THOMSON DTH-3300 98T3K THOMSON DTH-3600 98T3K TOSHIBA SD-3107E 98706 YAMAHA DVD S700 98701 YAMAHA DVD S795 98361 For the folowing modules it is possible to disable the MacroVision ..... Player Model BJChip MV Output Comment Denon 2000 3 off PAL/NTSC 2500 4EU off PAL/NTSC 2500 4US off PAL/NTSC PanaPAL 60 needed for PAL 60 3000 4 off PAL/NTSC 5000 4 off PAL/NTSC JVC 1000 3 off PAL/NTSC 810new 4EU off PAL 60 firmware 2.3 810new 4EU off PAL 60 firmware 2.5 810new 4US off PAL/NTSC firmware 2.3 810new 4US off PAL/NTSC firmware 2.5 Meridian 586 4EU off PAL 60 firmware 1.7 586 4EU off PAL 60 firmware 2.0 586 4US off PAL/NTSC firmware 1.7 586 4US off PAL/NTSC firmware 2.0 Mitsubishi 2000 4EU off 2000 4US off Onkyo 501 4EU off Panasonic 100 3 off PAL/NTSC 110 4 off PAL/NTSC PanaPAL 60 needed for PAL 60 130 4 off PAL/NTSC PanaPAL 60 needed for PAL 60 150 4 off PAL/NTSC PanaPAL 60 needed for PAL 60 310 4 off PAL/NTSC PanaPAL 60 needed for PAL 60 330 4 off PAL/NTSC PanaPAL 60 needed for PAL 60 350 4 off PAL/NTSC 360 4EU off PAL/NTSC 360 4US off PAL/NTSC 450 4 off PAL/NTSC Philips 705 4EU off PAL 60 firmware 2.3 705 4EU off PAL 60 firmware 2.5 705 4US off PAL/NTSC firmware 2.3 705 4US off PAL/NTSC firmware 2.5 810 4EU off PAL 60 firmware 1.4 810 4US off PAL/NTSC firmware 1.4 Pioneer 525 3EU off PAL/NTSC 525 3US off PAL/NTSC 626 3EU off PAL/NTSC 626 3US off PAL/NTSC 717 3 off PAL/NTSC LC10 3US off PAL/NTSC RCA 5200 3 off PAL/NTSC 5210 3 off PAL/NTSC 5500 3 off PAL/NTSC 5510 3 off PAL/NTSC Sony 300 3 off PAL/NTSC 315 3 off PAL/NTSC 325 4 off PAL/NTSC 330 4 off PAL/NTSC 500 3 off PAL/NTSC 525 4 off PAL/NTSC 530 4 off PAL/NTSC 600 3 off PAL/NTSC 715 3 off PAL/NTSC 725 4 off PAL/NTSC 7700 3 off PAL/NTSC RS232 4 off PAL/NTSC Thomson 1000 3 off PAL/NTSC 2000 4 off PAL/NTSC Check for PanaPAL 60 Toshiba 310 4EU off PAL 60 firmware 2.3 310 4EU off 310 4US off PAL/NTSC firmware 2.3 310 4US off PAL/NTSC firmware 2.5 420 4EU off PAL 60 firmware 2.0 420 4EU off PAL 60 firmware 2.4 420 4US off PAL/NTSC firmware 2.0 420 4US off PAL/NTSC firmware 2.4 2100 4EU off PAL/NTSC firmware 2.3 2100 4EU off PAL/NTSC firmware 2.5 2107 4EU off PAL 60 firmware 2.3 2107 4EU off PAL 60 firmware 2.5 2107 4US off PAL/NTSC firmware 2.3 2107 4US off PAL/NTSC firmware 2.5 2108 4EU off PAL 60 firmware 1.3 2108 4US off PAL/NTSC firmware 1.3 2109 4EU off PAL 60 firmware 1.4 2109 4EU off PAL 60 firmware 1.5 2109 4EU off PAL 60 firmware 1.8 2109 4US off PAL/NTSC firmware 1.4 2109 4US off PAL/NTSC firmware 1.5 2109 4US off PAL/NTSC firmware 1.8 3107 4EU off PAL 60 firmware 2.3 3107 4EU off PAL 60 firmware 2.5 3107 4US off PAL/NTSC firmware 2.3 3107 4US off PAL/NTSC firmware 2.5 3109 4EU off PAL 60 firmware 1.12 3109 4US off PAL/NTSC firmware 1.12 Yamaha 795 4EU off PAL/NTSC 795 4US off PAL/NTSC Check for PanaPAL 60 1000 3 off PAL/NTSC The Macrovision has *NOT* (yet) been removed from the following drives : JVC 501 3 PAL/NTSC 701 3 PAL/NTSC Marantz 810 3 NTSC Mitsubisha1000 3 NTSC Philips 710 4 PAL/NTSC 730 4 PAL/NTSC 735 4 PAL/NTSC 930 4 PAL/NTSC 935 4 PAL/NTSC Panasonic 120 4 NTSC 160 3 PAL/NTSC Pioneer 414 3 NTSC 515 3 PAL/NTSC 919 3 PAL/NTSC Thomson 3300 3 PAL/NTSC 3600 3 PAL/NTSC Teac 1000 3 PAL/NTSC Toshiba 3000 3 NTSC 3006 3 NTSC 2006 3 NTSC Yamaha 700 4 PAL/NTSC Check for PanaPAL 60 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 17:03:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14833 for dvd-discuss-outgoing; Wed, 15 Mar 2000 17:03:18 -0500 Received: from fb00.eng00.mindspring.net (fb00.eng00.mindspring.net [207.69.200.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14807 for ; Wed, 15 Mar 2000 17:03:17 -0500 Received: from mindspring.com (user-2ivf832.dialup.mindspring.com [165.247.160.98]) by fb00.eng00.mindspring.net (8.9.3/8.8.5) with ESMTP id SAA19053 for ; Wed, 15 Mar 2000 18:16:39 -0500 (EST) Message-ID: <38D018F5.D052DE17@mindspring.com> Date: Wed, 15 Mar 2000 18:12:53 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: ; <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> <20000315000848.A27997@thud.reric.net> <38CFA6BD.5C0B3C1E@cdpage.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dana Parker wrote: > > > But DVD is the same _everywhere_, and the PAL/NTSC signals are created by > > the hardware. So without region codes the MPAA's carefully constructed > > release schedule is blown away. > > No, it isn't the same everywhere. There are PAL DVDs and there are NTSC DVDs. But > again, most European players can play both formats. > > See http://www.dvddemystified.com/dvdfaq.html#1.19 Unfortunately this link is broken. I though DVD's only contained MPEG. So I wouldn't have thought that there would be enough space on the DVD for digitized NTSC or PAL. Are these not much used? Is CSS used in conjunction with them? -Jeff From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 17:32:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA20972 for dvd-discuss-outgoing; Wed, 15 Mar 2000 17:32:26 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA20969 for ; Wed, 15 Mar 2000 17:32:24 -0500 Received: (qmail 31819 invoked by uid 502); 15 Mar 2000 23:48:01 -0000 Date: Wed, 15 Mar 2000 18:48:01 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction Message-ID: <20000315184801.F25270@linuxpower.org> References: <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> <20000315000848.A27997@thud.reric.net> <38CFA6BD.5C0B3C1E@cdpage.com> <38D018F5.D052DE17@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38D018F5.D052DE17@mindspring.com>; from Jeff Waller on Wed, Mar 15, 2000 at 06:12:53PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 06:12:53PM -0500, Jeff Waller wrote: > > > Dana Parker wrote: > > > See http://www.dvddemystified.com/dvdfaq.html#1.19 > > Unfortunately this link is broken. I though DVD's only contained MPEG. > So I wouldn't have thought that there would be enough space on the > DVD for digitized NTSC or PAL. Are these not much used? Is CSS > used in conjunction with them? Link works fine for me. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 17:43:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22401 for dvd-discuss-outgoing; Wed, 15 Mar 2000 17:43:56 -0500 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22398 for ; Wed, 15 Mar 2000 17:43:55 -0500 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id SAA17332 for ; Wed, 15 Mar 2000 18:57:17 -0500 (EST) Date: Wed, 15 Mar 2000 18:57:17 -0500 (EST) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Digital Transmission Content Protection Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While searching for information regarding CSS fees, I noticed the following: from "http://www.dtcp.com/spec.html" "The DTCP specification defines a cryptographic protocol for protecting audio/video entertainment content from illegal copying, intercepting and tampering as it traverses high performance digital buses, such as the IEEE 1394 standard. Only legitimate entertainment content delivered to a source device via another approved copy protection system (such as the DVD Content Scrambling System) will be protected by this copy protection system. The DTCP specification relies on strong cryptographic technologies to provide flexible and robust copy protection across digital buses. These cryptographic techniques have evolved over the past 20 years to serve critical military, governmental and commercial applications. These techniques have been thoroughly evaluated by hackers and by legitimate cryptographic experts and have proven their ability to withstand attack. The cryptographic stability of the system is derived from the proven strength of the underlying technologies, rather than merely how well a certain algorithm can be kept secret. " But a chain is only as strong as its weakest link. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 18:01:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24711 for dvd-discuss-outgoing; Wed, 15 Mar 2000 18:01:42 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24708 for ; Wed, 15 Mar 2000 18:01:41 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id QAA09850 for ; Wed, 15 Mar 2000 16:15:19 -0800 (PST) Message-ID: <38D02739.51C4B705@cdpage.com> Date: Wed, 15 Mar 2000 17:13:45 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Authorization; 1201(a)(2) / (b) distinction References: ; <001f01bf8e0e$44e1d380$d559fea9@25915>; <20000314230531.26787.qmail@hotmail.com> <001f01bf8e0e$44e1d380$d559fea9@25915> <20000314190134.G18949@linuxpower.org> <20000314210219.B2953@localhost> <20000315000848.A27997@thud.reric.net> <38CFA6BD.5C0B3C1E@cdpage.com> <38D018F5.D052DE17@mindspring.com> Content-Type: multipart/alternative; boundary="------------5ABC599B73A92184CACE4565" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --------------5ABC599B73A92184CACE4565 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Jeff Waller wrote: > Dana Parker wrote: > > > > > > But DVD is the same _everywhere_, and the PAL/NTSC signals are created by > > > the hardware. So without region codes the MPAA's carefully constructed > > > release schedule is blown away. > > > > No, it isn't the same everywhere. There are PAL DVDs and there are NTSC DVDs. But > > again, most European players can play both formats. > > > > See http://www.dvddemystified.com/dvdfaq.html#1.19 > > Unfortunately this link is broken. I though DVD's only contained MPEG. > So I wouldn't have thought that there would be enough space on the > DVD for digitized NTSC or PAL. Are these not much used? Is CSS > used in conjunction with them? > > -Jeff The link works for me. Try truncating it to http://www.dvddemystified.com The FAQ will also explain (better than I could) the difference between MPEG and what's on a DVD. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com --------------5ABC599B73A92184CACE4565 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Jeff Waller wrote:

Dana Parker wrote:

>
> > But DVD is the same _everywhere_, and the PAL/NTSC signals are created by
> > the hardware.  So without region codes the MPAA's carefully constructed
> > release schedule is blown away.
>
> No, it isn't the same everywhere. There are PAL DVDs and there are NTSC DVDs. But
> again, most European players can play both formats.
>
> See http://www.dvddemystified.com/dvdfaq.html#1.19

Unfortunately this link is broken.  I though DVD's only contained MPEG.
So I wouldn't have thought that there would be enough space on the
DVD for digitized NTSC or PAL.  Are these not much used?  Is CSS
used in conjunction with them?

-Jeff


The link works for me. Try truncating it to http://www.dvddemystified.com
 

The FAQ will also explain (better than I could) the difference between MPEG and what's on a DVD.
 

--
Dana J. Parker
Consultant
http://www.cdpage.com
Contributing editor/standards columnist
Emedia magazine
http://www.emediapro.net
DVD PRO Conference Chair
http://www.dvdpro.net
I support the Campaign for Audiovisual Free Expression
http://www.eff.org/cafe

mailto:danapark@ix.netcom.com
  --------------5ABC599B73A92184CACE4565-- From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 18:32:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30418 for dvd-discuss-outgoing; Wed, 15 Mar 2000 18:32:27 -0500 Received: from smtp1.san.rr.com (mta@smtp1.san.rr.com [24.25.195.37]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30397 for ; Wed, 15 Mar 2000 18:32:26 -0500 Received: from greg ([24.25.211.133]) by smtp1.san.rr.com (Post.Office MTA v3.5.3 release 223 ID# 0-0U10L2S100V35) with SMTP id com for ; Wed, 15 Mar 2000 16:45:51 -0800 From: "Greg Freeman" To: Subject: RE: [dvd-discuss] Region Protection And Win2k Driver Date: Wed, 15 Mar 2000 16:45:51 -0800 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3155.0 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu New to the list, wanted to add something about the macrovision protection and DVD's. If you hook your home dvd player through your vcr the macrovision kicks in (I believe all VCR's for the last decade or so had the macrovision circuitry in them). However, If you get your hands on a little device called the "Dazzle Digital Video Creator" it takes RCA jack inputs and converts them "On the fly" to MPG files. You can have the MPG's encoded in VCD format and burn them onto regular CD's for use on any computer (no dvd player required). Where this is going, is that the Dazzle does not recognize the macrovision encoding and since the home DVD player has already decrypted the movie, you can encode a full dvd disc into an MPG of about 2GB and then process it any way you want. Instead of taking hours and hours to process the VOB files you could have a playable VCD (on 2 CDR's) in about 4 hours. The point I think I was trying to make is that their are many ways to get around the ecryption of discs, why is the MPAA ignoring them? Greg Freeman ---------------------------------------------------------------------------- --------- Want to earn money while you surf? Earn 50 cents per hour while you surf. Refer people and earn 10 cents per hour while they surf. Go to www.alladvantage.com for more information. If you join, please list me as your referer. Membership # FMY-804 > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Steve Stearns > Sent: Wednesday, March 15, 2000 1:07 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Region Protection And Win2k Driver > > > > Since Macrovision has been around longer, I'd like to know about the > > legal status of hardware and software (or plans for hardware) which > > disable it. > > An interesting related story is that somebody I know bought a DVD player > and the output of it was protected using Macrovision. The TV he has is > one of those VCR/TV combos. So, when he tried to plug it in, he > discovered that he couldn't view the movie. So, basically his choices > were to either give up on DVD all together, or buy a device to circumvent > macrovision. He got such a device and it has been working perfectly ever > since. Does he copy DVD's? No. This is just so he can watch the damn > things in the first place. > > ---Steve > > > From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 18:47:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01486 for dvd-discuss-outgoing; Wed, 15 Mar 2000 18:47:22 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01482 for ; Wed, 15 Mar 2000 18:47:22 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id UAA24937 for ; Wed, 15 Mar 2000 20:00:44 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA22801; Wed, 15 Mar 2000 20:00:42 -0500 (EST) Date: Wed, 15 Mar 2000 20:00:42 -0500 (EST) Message-Id: <200003160100.UAA22801@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Region Protection And Win2k Driver In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Greg Freeman writes: > Where this is going, is that the Dazzle does not recognize the > macrovision encoding and since the home DVD player has already decrypted the > movie, you can encode a full dvd disc into an MPG of about 2GB and then > process it any way you want. Instead of taking hours and hours to process > the VOB files you could have a playable VCD (on 2 CDR's) in about 4 hours. > The point I think I was trying to make is that their are many ways to get > around the ecryption of discs, why is the MPAA ignoring them? We've already discussed a few other ways to capture a digital image of the output of a licensed DVD player --- for instance, a Windows video driver which does an MP3 dump of whatever it's playing in real time. However, that software is not obviously a circumvention device --- it is useful with anything that can put up video (visualization tools, games, etc.), and isn't clearly targeted at DVDs per se. So, the MPAA may be staying away from it because it isn't within their idea of the scope of the law. On the other hand, they had to go sue *somebody* first, so it's also possible that they've just gone after the skankiest looking defendants they can find in round one, in search of a precedent they can use against everybody else... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 18:49:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA02247 for dvd-discuss-outgoing; Wed, 15 Mar 2000 18:49:40 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA02244 for ; Wed, 15 Mar 2000 18:49:39 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA14579 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 17:00:17 -0800 Date: Wed, 15 Mar 2000 17:00:16 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Digital Transmission Content Protection Message-ID: <20000315170016.H13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from jerwin@osf1.gmu.edu on Wed, Mar 15, 2000 at 06:57:17PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A Erwin writes: > While searching for information regarding CSS fees, I noticed the > following: > from "http://www.dtcp.com/spec.html" > > "The DTCP specification defines a cryptographic protocol for protecting > audio/video entertainment content from illegal copying, intercepting and > tampering as it traverses high performance digital buses, such as the IEEE > 1394 standard. Only legitimate entertainment content delivered to a source > device via another approved copy protection system (such as the DVD > Content Scrambling System) will be protected by this copy protection > system. > > The DTCP specification relies on strong cryptographic technologies to > provide flexible and robust copy protection across digital buses. These > cryptographic techniques have evolved over the past 20 years to serve > critical military, governmental and commercial applications. > > These techniques have been thoroughly evaluated by hackers and by > legitimate cryptographic experts and have proven their ability to > withstand attack. The cryptographic stability of the system is derived > from the proven strength of the underlying technologies, rather than > merely how well a certain algorithm can be kept secret. " > > But a chain is only as strong as its weakest link. John Young of Cryptome has been following DTCP a bit. He mentioned it not so long ago. It is probably as strong as the tamper-resistant hardware in which the keys are stored (and within which encryption and decryption happen). I guess there is still a question in all-digital displays of whether there will be an unencrypted digital video stream at some point outside of the tamper-resistant part of a DTCP device. That stream could then be captured by specialized hardware. The "weakest link" point isn't relevant to the interaction of CSS and DTCP, because DTCP is stronger than CSS, but a device which processes digital video streams and "speaks" both CSS and DTCP would always have CSS inputs[1] and DTCP outputs, never DTCP inputs and CSS outputs. The ability to produce unlicensed inputs in a home entertainment environment is presumably never a problem (from the CP point of view, and speaking only technically, not legally); only the ability to produce unlicensed digital _output_ is a problem. So, because licensed devices in this case would only increase the strength of copy protection, not decrease it, the fact that CSS-encrypted media might be an approved input method for devices with DTCP outputs is not relevant to the security of DTCP. Please correct me if I am wrong about this. It seems pretty clear to me, but I haven't seen the DTCP specs, and there might be some assumption I'm missing. The world desperately needs a public copy protection discussion list. These discussions are very important, but they are not topical for dvd-discuss, and someone is going to get annoyed sometime. [1] Obviously CSS is not a wire protocol; by "CSS inputs" I mean "digital inputs produced from CSS-encrypted digital media". -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 18:55:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05505 for dvd-discuss-outgoing; Wed, 15 Mar 2000 18:55:50 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA05502 for ; Wed, 15 Mar 2000 18:55:49 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA14600 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 17:06:26 -0800 Date: Wed, 15 Mar 2000 17:06:26 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region Protection And Win2k Driver Message-ID: <20000315170626.I13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003160100.UAA22801@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200003160100.UAA22801@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Mar 15, 2000 at 08:00:42PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > We've already discussed a few other ways to capture a digital image of > the output of a licensed DVD player --- for instance, a Windows video > driver which does an MP3 dump of whatever it's playing in real time. That would have to be "MPEG" (because it's pretty hard to dump video into MP3 audio). -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 20:19:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25537 for dvd-discuss-outgoing; Wed, 15 Mar 2000 20:19:39 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25534 for ; Wed, 15 Mar 2000 20:19:38 -0500 Received: from 208-58-196-56.s310.tnt10.lnhva.md.dialup.rcn.com ([208.58.196.56]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12VQ5N-0004bu-00 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 21:32:31 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000315170016.H13379@cty-alum.org> References: <20000315170016.H13379@cty-alum.org> Date: Wed, 15 Mar 2000 21:32:07 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Digital Transmission Content Protection Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >The "weakest link" point isn't relevant to the interaction of CSS and >DTCP, because DTCP is stronger than CSS, but a device which processes >digital video streams and "speaks" both CSS and DTCP would always have >CSS inputs[1] and DTCP outputs, never DTCP inputs and CSS outputs. The >ability to produce unlicensed inputs in a home entertainment environment >is presumably never a problem (from the CP point of view, and speaking >only technically, not legally); only the ability to produce unlicensed >digital _output_ is a problem. So, because licensed devices in this >case would only increase the strength of copy protection, not decrease >it, the fact that CSS-encrypted media might be an approved input method >for devices with DTCP outputs is not relevant to the security of DTCP. > >... > >The world desperately needs a public copy protection discussion list. >These discussions are very important, but they are not topical for >dvd-discuss, and someone is going to get annoyed sometime. OK, so it's the digital equivalent of Macrovision, and circumventing it would be the equivalent of doing some major hardware surgery to remove Macrovision from a consumer DVD-Video player. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 20:31:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28803 for dvd-discuss-outgoing; Wed, 15 Mar 2000 20:31:13 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA28800 for ; Wed, 15 Mar 2000 20:31:12 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id VAA02767 for ; Wed, 15 Mar 2000 21:44:35 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA23511; Wed, 15 Mar 2000 21:44:34 -0500 (EST) Date: Wed, 15 Mar 2000 21:44:34 -0500 (EST) Message-Id: <200003160244.VAA23511@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region Protection And Win2k Driver In-Reply-To: <20000315170626.I13379@cty-alum.org> References: <200003160100.UAA22801@soggy-fibers.ai.mit.edu> <20000315170626.I13379@cty-alum.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen writes: > Robert S. Thau writes: > > > We've already discussed a few other ways to capture a digital image of > > the output of a licensed DVD player --- for instance, a Windows video > > driver which does an MP3 dump of whatever it's playing in real time. > > That would have to be "MPEG" (because it's pretty hard to dump video > into MP3 audio). Yeah --- dumb typo. Thanks. (For trivia buffs, the two formats are related --- "mp3" actually stands for "mpeg layer 3 audio". Which doesn't excuse the confusion, of course...). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 20:48:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32273 for dvd-discuss-outgoing; Wed, 15 Mar 2000 20:48:09 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA32270 for ; Wed, 15 Mar 2000 20:48:08 -0500 Received: (qmail 2006 invoked by uid 60001); 16 Mar 2000 03:01:31 -0000 Message-ID: <20000316030131.2005.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Wed, 15 Mar 2000 19:01:31 PST Date: Wed, 15 Mar 2000 19:01:31 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Johansen and livid-dev To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org responded to me: > > I haven't seen these posts. By all means if they (or anything else) > > cast doubt on Johansen's Linux explaination, then put them in the > > record here. > > No need. A perfectly adequate record is here: http://livid.on.openprojects.net/pipermail/livid-dev/1999-October/thread.html I read through a lot of the list and several things struck me. Overall, I see the list as lending a lot of credibility to Johansen's case. I don't see it casting doubt as to this. 1. Johansen is obviously prefers FreeBSD over Linux. In fact, he even makes some apathetic comments about Linux, but it appears to me as friendly rivalry betweem open source OS's. He also encourages others to be patient and is clearly working WITH Derek Fawcus. http://livid.on.openprojects.net/pipermail/livid-dev/1999-October/000517.html 2. Derek Fawcus and MoRE appearently had a private agreement and traded software on terms other than the GPL. I think the antagonism between the Fawcus and Johansen was greatly overstated, perhaps mistaken. Johansen and Fawcus appeared to have a decent working relationship. Fawcus obviously settled any issues he had with MoRE using some of his code without credit. http://livid.on.openprojects.net/pipermail/livid-dev/1999-October/000548.html 3. Johansen refers to viewing movies under "alternative OSs such as linux and FreeBSD" as early as Nov-13-1999. http://livid.on.openprojects.net/pipermail/livid-dev/1999-November/001196.html 4. Johansen posted links to and excerts from the DMCA on Nov-11-1999, appearantly before he was detained. He appears to carefully consider and rely on the language of 1201(f) to convince himself at least that he would not be violating this law. Here he writes: "In the US we have the DMCA which explicetly states that what has happened would be perfectly legal. We now have dvd playback on linux." http://livid.on.openprojects.net/pipermail/livid-dev/1999-November/001055.html 5. Derek Fawcus states on Jan-27-2000 that "luckily a DVD-Video disc _is_ a computer program for the DVD-Video virtual machine." Notable: he was replying to Alan Cox in the first case. http://livid.on.openprojects.net/pipermail/livid-dev/2000-January/002778.html http://livid.on.openprojects.net/pipermail/livid-dev/2000-January/002812.html Overall, I think the livid-dev mailing list shows Johansen was trying to contribute to Linux (and FreeBSD) and shared code with Derek Fawcus as a liason to bring this about. He clearly believed _before_ he was arrested that his actions were consistent with the DMCA and measured them carefully. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 20:52:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00819 for dvd-discuss-outgoing; Wed, 15 Mar 2000 20:52:07 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA00816 for ; Wed, 15 Mar 2000 20:52:06 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA14709 for dvd-discuss@eon.law.harvard.edu; Wed, 15 Mar 2000 19:02:43 -0800 Date: Wed, 15 Mar 2000 19:02:43 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Digital Transmission Content Protection Message-ID: <20000315190243.K13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000315170016.H13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from jerwin@gmu.edu on Wed, Mar 15, 2000 at 09:32:07PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin writes: > OK, so [DTCP]'s the digital equivalent of Macrovision, and circumventing > it would be the equivalent of doing some major hardware surgery to > remove Macrovision from a consumer DVD-Video player. DTCP is a lot tougher than Macrovision -- it requires authentication of the receiving device. Macrovision means that the signal is modified so that many recording devices won't be able to record the signal. DTCP means that the signal is encrypted so that, unless the recording device refuses to make unauthorized recordings at all, it won't be licensed to have a key to identify itself in order to receive a key to decrypt the signal. So, Macrovision depends on recording devices not to be produced to ignore the Macrovision signal. DTCP depends on recording devices not having device keys in the first place if they are not willing to honor the DTCP compliance requirements. If you want to produce a noncompliant unlicensed device in the first case, you should just need to understand NTSC. If you want to produce a noncompliant unlicensed device in the second case, you should need to "misappropriate" a key somehow, or break one of several very strong cryptosystems. If you produce a noncompliant licensed device, you can be sued for breach of contract. It's a pretty clever scheme, and it underscores a lot of differences between the analog and digital worlds. (This account is based on analogies to HDCP, about which I very recently saw a presentation. There could be some implementation differences between HDCP and DTCP, but I think they are very similar in concept.) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 22:26:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16838 for dvd-discuss-outgoing; Wed, 15 Mar 2000 22:26:18 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA16816 for ; Wed, 15 Mar 2000 22:26:17 -0500 Received: (qmail 13170 invoked by uid 60001); 16 Mar 2000 04:39:39 -0000 Message-ID: <20000316043939.13169.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Wed, 15 Mar 2000 20:39:39 PST Date: Wed, 15 Mar 2000 20:39:39 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] RealNetworks v. Streambox To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Wendy Seltzer wrote: > One take on the difference between access control and copy control > comes from the District Court in Seattle that granted a partial > preliminary injunction in RealNetworks v. Streambox: > RealNetworks, Inc. v. Streambox, Inc. No. :99CV02070 (W.D. Wash. Jan. 18, 2000) This is a fascinating case. I think it illustrates many of the finer points of the DMCA, in the context I think it was meant for - streaming audio and video. Basically, RealPlayer can be used sort of like a home theater - you can be allowed to view or listen to a work without actually licencing it. No copy in any form is given to you in any fixed media. Once you see the work it 'evaporates'. The copyright owners can flip a "copy switch" flag that the client enforces to disallow copying. In order to enforce the authority flag, the client obviously must be authenticated. I think Streambox VCR is exactly the kind of product the DMCA was designed to prohibit. This is in contrast to the Streambox "Ripper" which was not enjoined. (!) There are many clear distinguishing features from the DVD cases: 1. No first sale / fair use arguement The user doesn't buy any physical media containing the work. This is exactly like going to a physical theater. You can't touch the actual stored copy - you don't own a copy. 2. Solves the copyright owner authority problem. All it takes is a single "copy" bit per work. Nice. 3. Lawsuit brought by RealNetworks So why isn't the DVD CCA suing in NY and CT? 4. Clearly commerce Streambox VCR is a for profit product and thus clearly falls within the Congressional commerce power. A legitimate 'paracopyright' application using the commerce clause. 5. Reverse Engineering This fails because even after reverse engineering RealPlayer and interoperating with the server, no copyright licences are obtained and the use of the tool can only lead to copyright infringement. Section (f)(2) demands that the interoperability "does not constitute infringement under this title". In this case the exchange of data is unathorized copying and therefore infringement. 6. "Fair Access" fails Streambox's access results in copyright infringement, not fair use. On the other side, Streambox's "Ripper" was OK. This product changes file formats among .wav, .wma, .mp3. The judge OK'd it saying: "The Ripper operates on files which are already resident on the hard disk of the user’s computer. The Ripper permits users to convert files that they have already created or obtained (presumably through legitimate means) from one format to another." "Streambox has proferred evidence that one potential use of the Ripper would be to permit copyright owners to translate their content directly from the RealMedia format into other formats that they may wish to utilize for their own work. Streambox has provided examples of various content owners who need a way to convert their own RealMedia files into different formats, such as .WAV for editing, or .WMA to accommodate those users who wish to access the content with a Windows Media Player instead of a RealPlayer. In addition, content which is freely available, such as public domain material and material which users are invited and even encouraged to access and copy, may be converted by the Ripper into a different file format for listening at a location other than the user’s computer." I think this part is a powerful precedent!! Hooray for Judge Marsha J. Pechman. If you think about it, all DeCSS does is change file formats. One potential use of DeCSS is to allow a DVD-Video author to extract their own copyrighted material. DVD authoring tools are widely availabe, for example, DVDMotion is one such tool. This is clearly a legitimate "commercially significant" purpose. In addition, some DVD's contain some public domain material, which may be converted by DeCSS. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 22:54:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22722 for dvd-discuss-outgoing; Wed, 15 Mar 2000 22:54:49 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA22719 for ; Wed, 15 Mar 2000 22:54:47 -0500 Received: (qmail 23302 invoked by uid 60001); 16 Mar 2000 05:08:10 -0000 Message-ID: <20000316050810.23301.qmail@web505.mail.yahoo.com> Received: from [24.28.154.65] by web505.mail.yahoo.com; Wed, 15 Mar 2000 21:08:10 PST Date: Wed, 15 Mar 2000 21:08:10 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu DeCSS has three commercially significant uses other than circumvention. Any one of these is enough to disprove 1201(a)(2)(B): 1) It may be used by DVD-Video content creaters in conjunction with DVD authoring tools to test the output. For example, DVDMotion, one such authoring tool, requires a player and lists XingDVD as compatible. DeCSS + any free mpeg2 player would suffice. 2) It may be used by copyright holders who have created content with an authoring tool to convert that content back to a standard format, for example if the originals were damaged, deleted, lost, or otherwise inaccessible. 3) To remove access controls from non protected works, such as public domain or copyright expired works. In each case, the critical feature of circumvention, access-without-authority is superceded by access-with-authority. DeCSS is a tool for ACCESS, not circumvention. Any use where this occurs with the authority of a copyright holder is sufficient to disprove 1201(a)(2)(B). Since the media doesn't contain any information like the copy flag in the RealPlayer, there is no way for the software to tell if the access is with or without authority. Thus it is necessary to rely on the user to obey the law instead of enforcing this in software. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 15 23:00:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24945 for dvd-discuss-outgoing; Wed, 15 Mar 2000 23:00:28 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA24925 for ; Wed, 15 Mar 2000 23:00:27 -0500 Received: (qmail 11802 invoked by uid 500); 16 Mar 2000 05:19:18 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 05:19:18 -0000 Date: Wed, 15 Mar 2000 21:19:18 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source Code or Object Code? In-Reply-To: <20000315223438.862.qmail@web505.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 15 Mar 2000, Bryan Taylor wrote: > > > > --- Kent Nguyen wrote: > > > > --- Kent Nguyen wrote: > > > The fact that the judge does not discriminate between object code and > > source code is his lack of understanding of source code. The judge > > should be taught! > > Perhaps it has more to do with the fact that he considers both to be > technology that falls within the scope of 1201(a). Kaplan basically > says he doesn't care if it is speech because copyright limits speech. > Read his "balancing" explaination in his memorandum. > > Again, you have not provided any evidence that the DeCSS distributed by > the defendants in the NY case was source code. They took down the source code distributed by 2600. > > Suppose Kaplan was to grant that DeCSS source code was speech otherwise > protected by the first amendment. How would you continue your > arguement? I don't. I'm happy at that. > > > Taken from BERNSTEIN V USDOJ: > > > http://www.epic.org/crypto/export_controls/bernstein_decision_9_cir.html > > > > "First, it is not at all obvious that the government's view > > reflects a proper understanding of source code. ..." > > I went to graduate school with Dan Bernstein, so you're not going to > impress me with one sentence quotes from his cases. You should also > read Junger v. Daley, 8 F. Supp.2d 708, 715-18 (N.D. Ohio 1998) for an > alternate view. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 00:11:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23625 for dvd-discuss-outgoing; Thu, 16 Mar 2000 00:11:44 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA23622 for ; Thu, 16 Mar 2000 00:11:43 -0500 Received: from bugbug (max01-30.suba.com [206.69.121.222]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA12749 for ; Thu, 16 Mar 2000 00:25:04 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 00:24:07 -0600 Message-ID: <000501bf8f10$3ba0b5e0$de7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316050810.23301.qmail@web505.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan wrote: > DeCSS has three commercially significant uses other than circumvention. > Any one of these is enough to disprove 1201(a)(2)(B): > > 1) It may be used by DVD-Video content creaters in conjunction with DVD > authoring tools to test the output. For example, DVDMotion, one such > authoring tool, requires a player and lists XingDVD as compatible. > DeCSS + any free mpeg2 player would suffice. > > 2) It may be used by copyright holders who have created content with an > authoring tool to convert that content back to a standard format, for > example if the originals were damaged, deleted, lost, or otherwise > inaccessible. > > 3) To remove access controls from non protected works, such as public > domain or copyright expired works. > > In each case, the critical feature of circumvention, > access-without-authority is superceded by access-with-authority. > > DeCSS is a tool for ACCESS, not circumvention. Any use where this > occurs with the authority of a copyright holder is sufficient to > disprove 1201(a)(2)(B). DeCSS is *always* a tool for circumvention. The question is whether the circumvention can be lawfully done for purposes which are not infringing. It is possible to have unlawful access. In essence I agree with your approach, but I don't understand why you (among others) insist on calling the program something other than a circumvention device. If it were giving access as a player, it would have hardware attached to it. Access may be argued to be given in the act of purchase (not because a right to access is assumed, but simply because the medium in which the work is fixed is now owned by the purchaser), but that is surely different, or can be argued to be different, from permission to circumvent access control. The authority of the copyright holder of which 1201 speaks is simply permission to circumvent the access control. This permission is not permission to use or access the work (permission to access should come with the purchase). That the permission described in 1201 is not copyright in nature is implied by the reference to 1201 as "paracopyright", as something surrounding or above or preliminary to copyright but not sharing the same legal nature. If we consider the *right to access* to stem from the *permission* of the copyright holder, and not the circumvention of access control, which is what is implied in your "Any use where this [access] occurs with the authority.." you are likening access to use which we require authority of the copyright holder to do. This implies that the copyright holder *could* restrict our *access* to a purchased work, with a specific license, say. I'm feeling that, if this won the battle, it would certainly lose the war. I think a clearer point, varying the presentation of the "purchase implies (complete) permission to access argument", would be to say: if access is a paracopyright moment in our use of works, then its restriction on purchased works is unlawful, for it therefore restricts both infringing *and* non-infringing use, which by definition follow upon the paracopyright moment. sparky > > Since the media doesn't contain any information like the copy flag in > the RealPlayer, there is no way for the software to tell if the access > is with or without authority. Thus it is necessary to rely on the user > to obey the law instead of enforcing this in software. > > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 00:17:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24005 for dvd-discuss-outgoing; Thu, 16 Mar 2000 00:17:54 -0500 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA24002 for ; Thu, 16 Mar 2000 00:17:54 -0500 Received: from alaptop.hotwired.com ([12.78.129.73]) by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000316040837.IFMY26411.mtiwmhc21.worldnet.att.net@alaptop.hotwired.com> for ; Thu, 16 Mar 2000 04:08:37 +0000 Message-Id: <4.3.0.20000315231128.020c80f0@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Wed, 15 Mar 2000 23:11:35 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: [dvd-discuss] CyberPatrol sues programmers who published info on encryption Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ******** Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=cyberpatrol If you want to download the software before the injunction hits: http://hem.passagen.se/eddy1/reveng/cp4/cp4break.html If anyone sets up a mirror site, please let me know. -Declan ******** >Date: Wed, 15 Mar 2000 21:11:27 -0500 >From: Ted Bridis >Subject: Cyber Patrol lawsuit >To: declan@well.com > >Declan, > >Didn't know if you saw this yet. > >http://www.sjmercury.com/svtech/news/breaking/ap/docs/321750l.htm > >Software Co. sues hackers > >BY TED BRIDIS >AP Technology Writer > >WASHINGTON (AP) -- A company that makes popular software to block children >from pornographic Internet sites filed an unusual lawsuit late Wednesday >against two computer experts who developed a method for kids to deduce their >parents' password and access those Web sites. > >Microsystems Software Inc. of Framingham, Mass., which sells the widely used >Cyber Patrol, asked U.S. District Judge Edward F. Harrington for a temporary >restraining order requiring Eddy L. O. Jansson and Matthew Skala to stop >distributing their ``cphack'' program immediately. > >Skala, a Canadian graduate student in computer science, and Jansson, >believed to be living in Sweden, published over the weekend on the Internet >and in e-mail details about how to circumvent the filter technology in Cyber >Patrol, which sells for about $30 and is widely used in many of the nation's >elementary schools and libraries. > >They also offered a small ``cphack'' utility for ``people oppressed by Cyber >Patrol'' that, when run on a parent's computer, reveals the password that >blocks questionable Web sites -- and also discloses the product's entire >list of more than 100,000 Internet sites deemed unsuitable for children. > >``I oppose the use of Internet filtering software on philosophical >grounds,'' Skala said in a telephone interview with The Associated Press. >``The issue here was to see what does Cyber Patrol actually block. Parents >have a right to know what they're getting and without our work they wouldn't >know.'' > >In its legal filings, Microsystems said it suffered ``irreparable harm'' >from the publication of the bypassing software, which it said sought to >destroy the market for its product by rendering it ineffective. > >``The practical effect is that ... children may bypass their parents efforts >to screen out inappropriate materials on the Internet,'' the lawsuit said. > >Skala, a cryptography buff who attends the University of Victoria in British >Columbia, said he spent about six weeks analyzing Cyber Patrol with >Jansson's help via e-mail from Sweden. > >``One could well question how much force of law (the legal filings) have in >Sweden or in Canada,'' Skala said. > >In an unusual legal strategy, Microsystems alleged that Skala and Jansson >violated U.S. copyright law when they reverse-engineered Cyber Patrol to >analyze it, which the company said is expressly prohibited in its license >agreements. > >Skala, who learned about the legal filings in Massachusetts from the AP, >said he planned to speak with a lawyer but suggested that his work may be >protected under a ``fair use'' clause of copyright law. > >Microsystems also asked the judge to order the Swedish Internet company >where the bypass utility is published to turn over records identifying >everyone who visited the Web site or downloaded the program. > >The company's lawyer, Irwin Schwartz, said damage to its product is ``at >least at a minimum'' now because relatively few people were believed to have >downloaded the bypass software. > >------ > >On the Net: http://www.cyberpatrol.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 03:50:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA06294 for dvd-discuss-outgoing; Thu, 16 Mar 2000 03:50:18 -0500 Received: from mail.rdc1.sdca.home.com (imail@ha1.rdc1.sdca.home.com [24.0.3.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA06291 for ; Thu, 16 Mar 2000 03:50:17 -0500 Received: from home.com ([24.0.180.44]) by mail.rdc1.sdca.home.com (InterMail v4.01.01.00 201-229-111) with ESMTP id <20000316100340.MWE14303.mail.rdc1.sdca.home.com@home.com> for ; Thu, 16 Mar 2000 02:03:40 -0800 Message-ID: <38D0B1E8.E2F3A110@home.com> Date: Thu, 16 Mar 2000 02:05:28 -0800 From: Phillip Franklin Organization: Phillip Franklin Multimedia X-Mailer: Mozilla 4.61 [en]C-AtHome0407 (Win95; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Licensing fee for CSS for players? References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Jeanne A. E. DeVoto" wrote: > > > Does anyone know the fee arrangement for DVD player manufacturers? Publishers and manufacturers usually work off some type of volume or sliding fee schedule that is usually a confidential negotiated agreement. But I don't know exactly what the prevailing industry rate would be at this time for DVD CSS licensing. Does anyone know what the fee structure for similar items such as Dolby licensing and similar audio enhancement licensing? I used to be up on some of these fee structures but they seem inconsequential in the big picture of this CSS issue. I'm brand new to this list and hope that I can contribute something beneficial. Right now I'm getting really concerned and confused as to what's happening in DVD distribution. I'm actually directly involved in the day to day negotiating of distribution agreements for popular new media. I do have one rather broad question for some of the legal experts on this list. My feeling is that the defendants' actions in this case were similar to reverse engineering. I'm wondering if the law as to what is now considered reverse engineering will have to be redrawn from it's early 1980's distinctions. It would seem to me that the plaintiff's arguments, if valid law, would not accommodate much of the way that the early IBM PC's were cloned. Basically the clone developers were getting a machine to perform the same instructions to circumvent the need for a license from IBM on their copyrighted BIOS. If a clone DVD player were to be "backward engineered" to perform essentially the same set of instructions that the copyrighted code in a licensed machine could perform, than how is that different from this clone case? Streching this argument even further, can the publishers of the software media claim that this in essence violates the use agreement with the end user? Thus could Sony have a valid license on their program media which states that it would be a violation of use if the end user were to play that media on any other manufacturer's machine? Can a license agreement go that far and still be protected by current copyright law? Was the intent of the copyright legislation to go this far? Or is copyright only to protect the actual media. Could Microsoft force end users only to run their software on machines made by a particular manufacturer? So if I purchased Windows 2000 and ran it on say a G4 would that be a violation of the intent of the copyright? Maybe I'm way off legally here. But I find it confusing that copyright legislation was intended to give the holder this much arbitrary power. If so, then large software publishers could in essence have unlimited power which would not really be necessary to just protect their media. Phillip Franklin From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 08:21:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA03647 for dvd-discuss-outgoing; Thu, 16 Mar 2000 08:21:46 -0500 Received: from dial229.roadrunner.com (dial229.cybermesa.com [209.12.75.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA03644 for ; Thu, 16 Mar 2000 08:21:43 -0500 Received: (from paul@localhost) by dial229.roadrunner.com (8.8.7/8.8.7) id HAA00678 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 07:38:21 -0700 Date: Thu, 16 Mar 2000 07:38:20 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316073819.A592@localhost> References: <20000316050810.23301.qmail@web505.mail.yahoo.com> <000501bf8f10$3ba0b5e0$de7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <000501bf8f10$3ba0b5e0$de7945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Mar 16, 2000 at 12:24:07AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 12:24:07AM -0600, sparky wrote: > > Bryan wrote: > > DeCSS has three commercially significant uses other than circumvention. > > Any one of these is enough to disprove 1201(a)(2)(B): > > > > 1) It may be used by DVD-Video content creaters in conjunction with DVD > > authoring tools to test the output. For example, DVDMotion, one such > > authoring tool, requires a player and lists XingDVD as compatible. > > DeCSS + any free mpeg2 player would suffice. > > > > 2) It may be used by copyright holders who have created content with an > > authoring tool to convert that content back to a standard format, for > > example if the originals were damaged, deleted, lost, or otherwise > > inaccessible. > > > > 3) To remove access controls from non protected works, such as public > > domain or copyright expired works. > > > > In each case, the critical feature of circumvention, > > access-without-authority is superceded by access-with-authority. > > > > DeCSS is a tool for ACCESS, not circumvention. Any use where this > > occurs with the authority of a copyright holder is sufficient to > > disprove 1201(a)(2)(B). > > DeCSS is *always* a tool for circumvention. The question is whether the Because the law says that "circumvention" and "with authority" have no overlap, can we please find something other than "circumvention" as the generic word for "descrambling"? Part of the problem here is that § 1201(a)(3) defines "access" in terms of "with authority." To the extent that this section defines "access," it is circular. Does "access" include the activities in § 106 along with descrambling, or is it only the descrambling? The general tenor of § 1201 suggests to me that Congress _may_ have been thinking that "access" is disjoint from activities in § 106, but there is no clear statement of this point. > circumvention can be lawfully done for purposes which are not infringing. It But § 1201 doesn't say that all access in accord with § 106 is legal. It says "with authority" of the copyright holder. This is where the delegation argument may come in. The law doesn't say "access" for "lawful" *purposes*. It says "with authority," which isn't necessarily the same thing. > is possible to have unlawful access. In essence I agree with your approach, > but I don't understand why you (among others) insist on calling the program > something other than a circumvention device. If it were giving access as a > player, it would have hardware attached to it. But in the case of DVD, "decoder" != "disk drive". "Player" = "drive" + "decoder" The decoder can be in software or hardware. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 08:29:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA04660 for dvd-discuss-outgoing; Thu, 16 Mar 2000 08:29:06 -0500 Received: from hotmail.com (law2-f271.hotmail.com [216.32.180.195]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA04657 for ; Thu, 16 Mar 2000 08:29:04 -0500 Received: (qmail 74772 invoked by uid 0); 16 Mar 2000 14:41:57 -0000 Message-ID: <20000316144157.74771.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 06:41:57 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... Date: Thu, 16 Mar 2000 09:41:57 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "Robert S. Thau" >Joshua Daub writes: > > >From: "Robert S. Thau" > > >There's an article at > > > > > > http://www.opencontent.net/read.html?postid=24 > > > > > > > I read this article. The disdain for authority apparent in this >article > > played a pivotal role in the defendants' loss at the preliminary >injunction > > stage. The judge saw concrete examples of the defendants >unreasonableness > > (ie. attempts to get the genie out of the bottle). I know many are hot >to > > trot over open source, but that doesn't mean the rest of the world > > automatically agrees with you. More to the point, the open source >community > > does not convince anyone that they are right by being contempuous of > > everyone's rules but their own. > >Sigh... the reason I pointed it out was to show that access controls >are proliferating in the marketplace, and that we have an example here >where they are applied to text, which may make it easier to draw out >useful parallels to prior case law which discusses the right to read >and reproduce text specifically (as opposed to, say, performance >rights). I did not mean to suggest presenting linh's arguments >straight to Judge Kaplan. > >That said, your reaction to the article is different enough from my >own that I honestly find myself wondering if we were, in fact, reading >the same piece. As far as I can see, it does not suggest that making >unauthorized copies is a legitimate activity (in fact, when it points >out that the early marked-floppy scheme "sounds good in theory", it >explicitly acknowledges that scheme has a legitimate purpose). It >just pointed out that copy-protection schemes have been tried in the >past, and haven't prevented unauthorized copying, while they have >inflicted serious inconvenience on law-abiding purchasers of >legitimate copies. It calls Glassbook "bozos" not because they want >to prevent unauthorized copying, but because they're doing it in a way >which has proven in the past to be both obnoxious and completely >ineffective. Is that what you're calling disdain for authority, or >was it just the strong language? > >BTW, I don't think linh was speaking for the open-source community, or >even trying to --- I'm not sure he's even a member of the open-source >community (he is, FWIW, a Windows user). But if he was trying to >articulate that community's concerns, he probably would have mentioned >that the thing is closed source itself and runs only on Windows... > >rst I apologize for the prickly nature of my post. In addition, my comment may be overbroad in my use of the term "open source community," although the article was on opencontent.net. However, I stand by the point I was trying to make: Courts want to see parties act reasonably. Using language such as "bozo" or "cocksuckers" makes one sound unreasonable. Now, you can't punish someone for using the word "cocksucker," but the contempt for authority, and the implicit unreasonableness, has a detrimental effect: ie your position will not appear to be as reasonable. It is the same reason you wear a suit in court instead of a hawaiian shirt and jeans: this distinction would not affect the substance of your argument, but will imply to the judge that you are not serious, and by extention, that your arguments are not to be taken seriously. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 08:50:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA08498 for dvd-discuss-outgoing; Thu, 16 Mar 2000 08:50:51 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA08495 for ; Thu, 16 Mar 2000 08:50:50 -0500 Received: from bugbug (max01-49.suba.com [206.69.121.241]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id JAA21880 for ; Thu, 16 Mar 2000 09:04:09 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 09:03:11 -0600 Message-ID: <000901bf8f58$bee78080$f17945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316073819.A592@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > On Thu, Mar 16, 2000 at 12:24:07AM -0600, sparky wrote: > > > > Bryan wrote: > > > > > > DeCSS is a tool for ACCESS, not circumvention. Any use where this > > > occurs with the authority of a copyright holder is sufficient to > > > disprove 1201(a)(2)(B). > > > > DeCSS is *always* a tool for circumvention. The question is whether the > > > Because the law says that "circumvention" and "with authority" have no > overlap, can we please find something other than "circumvention" as the > generic word for "descrambling"? Part of the problem here is that > § 1201(a)(3) defines "access" in terms of "with authority." To the > extent that this section defines "access," it is circular. Hole in the law, IMO. If no overlap, and paracopyright, then any circumvention is not and can never be done except by the copyright holder (or rather, all access not done by copyright holder is circumvention and liable period). No exception for fair use of purchased work, nuthin. (Paul, it's hard for me to remember where the no-overlap was mentioned before. Can you tell me what string it's in?) > > Does "access" include the activities in § 106 along with descrambling, > or is it only the descrambling? The general tenor of § 1201 suggests > to me that Congress _may_ have been thinking that "access" is disjoint > from activities in § 106, but there is no clear statement of this point. > I would say that the term "paracopyright" makes it a pretty sound (not perfectly sound!) assumption that access is not covered under 106. Also, it's just not included there. If it were, there would probably have been a change in language of 106 at the time of the legislation. Oversight? Too bad! :) > > > circumvention can be lawfully done for purposes which are not > infringing. It > > But § 1201 doesn't say that all access in accord with § 106 is legal. It > says "with authority" of the copyright holder. This is where the > delegation > argument may come in. The law doesn't say "access" for "lawful" I think that would be my point.. therein lies a defense. Some acts of access are lawful. 1201 makes some of those illegal. 106 is beside the point, because it is talking about use, which comes after access (being paracopyright). 1201 overbroad, or what have you. > *purposes*. > It says "with authority," which isn't necessarily the same thing. > > > is possible to have unlawful access. In essence I agree with > your approach, > > but I don't understand why you (among others) insist on calling > the program > > something other than a circumvention device. If it were giving > access as a > > player, it would have hardware attached to it. > > But in the case of DVD, "decoder" != "disk drive". > "Player" = "drive" + "decoder" The decoder can be in software or hardware. hm, okeydoke. sparky > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 09:12:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12159 for dvd-discuss-outgoing; Thu, 16 Mar 2000 09:12:04 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA12156 for ; Thu, 16 Mar 2000 09:12:04 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id KAA19876 for ; Thu, 16 Mar 2000 10:25:27 -0500 (EST) Message-Id: <4.2.2.20000316094435.00b5cc90@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 16 Mar 2000 10:25:21 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] RealNetworks v Streambox DMCA case In-Reply-To: <20000315225727.17785.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:57 PM 3/15/00 -0800, bryan_w_taylor@yahoo.com wrote: >Is there any way to find out what other cases are "out there" that >reference the DMCA? Not many, so far. A quick search on DMCA and 1201 turned up 3 -- Kaplan's NY order, Streambox, and Sony v. Gamemasters, which I've HTMLified at (enjoining the Game Enhancer as a device to circumvent region controls on PlayStation games) Any law students with Lexis/Westlaw access up for continuing to monitor the situation? >Also, I've started collecting some cases (I added this one to my >collection). I plan to summarize and provide choice quotes for some of >them. Is there a way we could open a folder on the openlaw website for >this? Absolutely. How about the "cases" subdirectory. Until I work out a better system, offlist email is probably the best way to get the materials online. It would be great to compile an index of all of the cases people have looked at so far, possibly with brief summaries or selected quotes. Do you or someone else want to pull these out of existing threads and collect lists that have not been posted? We may already have answered more of the EFF's questions, but not yet have the material consolidated in one place. As people compile lists of the cases they've looked at, please try to include the citation in the form (fake regex alert): (U.S. | F.2d | F.3d | F.Supp) , (, ) --Wendy wendy@seltzer.com || wseltzer@kramerlevin.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 09:13:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA13016 for dvd-discuss-outgoing; Thu, 16 Mar 2000 09:13:48 -0500 Received: from dial124.roadrunner.com (dial124.cybermesa.com [209.12.75.124] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA13013 for ; Thu, 16 Mar 2000 09:13:45 -0500 Received: (from paul@localhost) by dial124.roadrunner.com (8.8.7/8.8.7) id IAA01039 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 08:28:54 -0700 Date: Thu, 16 Mar 2000 08:28:53 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316082853.A943@localhost> References: <20000316073819.A592@localhost> <000901bf8f58$bee78080$f17945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000901bf8f58$bee78080$f17945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Mar 16, 2000 at 09:03:11AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry I barked. Here are the two ref's I know of: Date: Tue, 7 Mar 2000 14:06:58 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Filing a strategy? To: dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Date: Tue, 7 Mar 2000 17:32:05 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Filing a strategy? X-Mailer: Mutt 0.95.4us In-Reply-To: <20000307220658.7237.qmail@web502.mail.yahoo.com>; from Bryan +Taylor on Tue, Mar 07, 2000 at 02:06:58PM -0800 Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 09:17:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA13600 for dvd-discuss-outgoing; Thu, 16 Mar 2000 09:17:17 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA13597 for ; Thu, 16 Mar 2000 09:17:16 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id KAA00822 for ; Thu, 16 Mar 2000 10:30:40 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA25955; Thu, 16 Mar 2000 10:30:39 -0500 (EST) Date: Thu, 16 Mar 2000 10:30:39 -0500 (EST) Message-Id: <200003161530.KAA25955@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... In-Reply-To: <20000316144157.74771.qmail@hotmail.com> References: <20000316144157.74771.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > Courts want to see parties act reasonably. Using language such as >"bozo" or "cocksuckers" makes one sound unreasonable. Now, you >can't punish someone for using the word "cocksucker," but the >contempt for authority, and the implicit unreasonableness, has a >detrimental effect: ie your position will not appear to be as >reasonable. I agree that in court, presentation and rhetoric matter --- in fact, I've made the same point myself in another context: http://eon.law.harvard.edu/archive/dvd-discuss/msg01331.html For that matter, I think it's pretty likely that the author of the opencontent piece agrees as well, and that if he himself were trying to write an amicus brief in a court case, he'd phrase it very differently. But he wasn't --- he was writing an op-ed piece pointing out the boneheaded features of a particular product, and their consequences for the users of that product. Using strong language in court displays disrepect for authority of the court. But this wasn't in court, and I'm not sure I see whose legitimate authority is being disrespected. rst PS: This marks two straight posts in this thread where I've referred to the author of the opencontent piece as "he". Which makes me a bit uncomfortable, since I actually have no way of knowing the gender of this individual.... From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 09:47:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19880 for dvd-discuss-outgoing; Thu, 16 Mar 2000 09:47:46 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA19877 for ; Thu, 16 Mar 2000 09:47:45 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id LAA04685 for ; Thu, 16 Mar 2000 11:01:10 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA26232; Thu, 16 Mar 2000 11:01:07 -0500 (EST) Date: Thu, 16 Mar 2000 11:01:07 -0500 (EST) Message-Id: <200003161601.LAA26232@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... In-Reply-To: <20000316144157.74771.qmail@hotmail.com> References: <20000316144157.74771.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > Courts want to see parties act reasonably. Using language such as > "bozo" or "cocksuckers" makes one sound unreasonable. Now, you > can't punish someone for using the word "cocksucker," but the > contempt for authority, and the implicit unreasonableness, has a > detrimental effect... One more thing. People who haven't read the opencontent.net piece we're discussing might conclude from the excerpt above that it uses words such as "cocksucker", and that that's what I'm defending. It doesn't and I'm not. Obscenity is one thing; "bozo" is another. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 09:52:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20225 for dvd-discuss-outgoing; Thu, 16 Mar 2000 09:52:50 -0500 Received: from hotmail.com (law2-f270.hotmail.com [216.32.180.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA20222 for ; Thu, 16 Mar 2000 09:52:48 -0500 Received: (qmail 99276 invoked by uid 0); 16 Mar 2000 16:05:39 -0000 Message-ID: <20000316160539.99274.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 08:05:39 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RealNetworks v. Streambox Date: Thu, 16 Mar 2000 11:05:39 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Bryan Taylor > > >--- Wendy Seltzer wrote: > > > One take on the difference between access control and copy control > > comes from the District Court in Seattle that granted a partial > > preliminary injunction in RealNetworks v. Streambox: > > > >RealNetworks, Inc. v. Streambox, Inc. No. >:99CV02070 (W.D. Wash. Jan. 18, 2000) > >This is a fascinating case. I think it illustrates many of the finer >points of the DMCA, in the context I think it was meant for - streaming >audio and video. > >Basically, RealPlayer can be used sort of like a home theater - you can >be allowed to view or listen to a work without actually licencing it. >No copy in any form is given to you in any fixed media. Once you see >the work it 'evaporates'. The copyright owners can flip a "copy switch" >flag that the client enforces to disallow copying. In order to enforce >the authority flag, the client obviously must be authenticated. > >I think Streambox VCR is exactly the kind of product the DMCA was >designed to prohibit. This is in contrast to the Streambox "Ripper" >which was not enjoined. (!) Note, however, the court made a couple of very important distinctions. I find this case to be incredibly damaging to many arguments on this list. #1. The court comes to separate conclusions regarding the "secret handshake" and the "copy switch." a. The "secret handshake" triggers liability under 1201(a)(2). b. The "copyswitch" triggers liabiltiy under 1201(b). c. For purposes of the DVD case, the copy switch is irrelevent, because the VCR violates the DMCA 1201(a)(2) when it bypasses the "secret handshake" prior to ignoring the "copy switch." Quote from the opinion: "In addition, the argument ignores the fact that before the Copy Switch is even implicated, the Streambox VCR has already circumvented the Secret Handshake to gain access to an unauthorized RealMedia file. That alone is sufficient for liability under the DMCA. See 17 U.S.C. § 1201(I)(e)." I don't have time to site to all the authority, but I will make the following further observations and defend them later: #2. The judge treats access as distinct from use. #3. The judge treats fair use under the DMCA differently from fair use prior to the DMCA, using Nimmer. #4. The judge finds that much of copyright precedent does not apply (or apply in the same way) under 1201; specifically, presumption of harm, compliance with fair use, #5. The ripper analysis is irrelevant to the DVD case because: "RealNetworks also alleges that Streambox’s marketing and distribution of the Ripper violates section 1201(b) (but not section 1201(a)(2) of the DMCA." >There are many clear distinguishing features from the DVD cases: >1. No first sale / fair use arguement >The user doesn't buy any physical media containing the work. This is >exactly like going to a physical theater. You can't touch the actual >stored copy - you don't own a copy. > >2. Solves the copyright owner authority problem. >All it takes is a single "copy" bit per work. Nice. > >3. Lawsuit brought by RealNetworks >So why isn't the DVD CCA suing in NY and CT? > >4. Clearly commerce >Streambox VCR is a for profit product and thus clearly falls within the >Congressional commerce power. A legitimate 'paracopyright' application >using the commerce clause. > >5. Reverse Engineering >This fails because even after reverse engineering RealPlayer and >interoperating with the server, no copyright licences are obtained and >the use of the tool can only lead to copyright infringement. Section >(f)(2) demands that the interoperability "does not constitute >infringement under this title". In this case the exchange of data is >unathorized copying and therefore infringement. > >6. "Fair Access" fails >Streambox's access results in copyright infringement, not fair use. > >On the other side, Streambox's "Ripper" was OK. This product changes >file formats among .wav, .wma, .mp3. The judge OK'd it saying: > >"The Ripper operates on files which are already resident on the hard >disk of the user’s computer. The Ripper permits users to convert files >that they have already created or obtained (presumably through >legitimate means) from one format to another." > >"Streambox has proferred evidence that one potential use of the Ripper >would be to permit copyright owners to translate their content directly >from the RealMedia format into other formats that they may wish to >utilize for their own work. Streambox has provided examples of various >content owners who need a way to convert their own RealMedia files into >different formats, such as .WAV for editing, or .WMA to accommodate >those users who wish to access the content with a Windows Media Player >instead of a RealPlayer. In addition, content which is freely >available, such as public domain material and material which users are >invited and even encouraged to access and copy, may be converted by the >Ripper into a different file format for listening at a location other >than the user’s computer." > >I think this part is a powerful precedent!! Hooray for Judge Marsha J. >Pechman. > >If you think about it, all DeCSS does is change file formats. One >potential use of DeCSS is to allow a DVD-Video author to extract their >own copyrighted material. DVD authoring tools are widely availabe, for >example, DVDMotion is one such tool. This is clearly a legitimate >"commercially significant" purpose. In addition, some DVD's contain >some public domain material, which may be converted by DeCSS. >__________________________________________________ >Do You Yahoo!? >Talk to your friends online with Yahoo! Messenger. >http://im.yahoo.com ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 10:22:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA23744 for dvd-discuss-outgoing; Thu, 16 Mar 2000 10:22:14 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA23741 for ; Thu, 16 Mar 2000 10:22:11 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA00461 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 10:35:34 -0600 Date: Thu, 16 Mar 2000 10:35:34 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316103534.A385@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316050810.23301.qmail@web505.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000316050810.23301.qmail@web505.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Mar 15, 2000 at 09:08:10PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 15, 2000 at 09:08:10PM -0800, Bryan Taylor wrote: > DeCSS has three commercially significant uses other than circumvention. > Any one of these is enough to disprove 1201(a)(2)(B): > > 1) It may be used by DVD-Video content creaters in conjunction with DVD > authoring tools to test the output. For example, DVDMotion, one such > authoring tool, requires a player and lists XingDVD as compatible. > DeCSS + any free mpeg2 player would suffice. > > 2) It may be used by copyright holders who have created content with an > authoring tool to convert that content back to a standard format, for > example if the originals were damaged, deleted, lost, or otherwise > inaccessible. Both of these two assume CSS encryption is performed by the DVD authoring tool (i.e. DVDMotion). Some of the information I've seen (on technicolor.com for example) implies that CSS encryption is performed only during creation of the glass master. If true, both (1) and (2) don't work. Look at page 10 of this document: http://www.technicolor.com/services/DVD2000v1.pdf Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 10:35:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA27665 for dvd-discuss-outgoing; Thu, 16 Mar 2000 10:35:16 -0500 Received: from hotmail.com (law2-f110.hotmail.com [216.32.181.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA27662 for ; Thu, 16 Mar 2000 10:35:15 -0500 Received: (qmail 45828 invoked by uid 0); 16 Mar 2000 16:48:16 -0000 Message-ID: <20000316164816.45827.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 08:48:16 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control on text from Stephen King. The horror... Date: Thu, 16 Mar 2000 11:48:16 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "Robert S. Thau" >Joshua Daub writes: > > Courts want to see parties act reasonably. Using language such as > >"bozo" or "cocksuckers" makes one sound unreasonable. Now, you > >can't punish someone for using the word "cocksucker," but the > >contempt for authority, and the implicit unreasonableness, has a > >detrimental effect: ie your position will not appear to be as > >reasonable. > >For that matter, I think it's pretty likely that the author of the >opencontent piece agrees as well, and that if he himself were trying >to write an amicus brief in a court case, he'd phrase it very >differently. > >But he wasn't --- he was writing an op-ed piece pointing out the >boneheaded features of a particular product, and their consequences >for the users of that product. > >Using strong language in court displays disrepect for authority of the >court. But this wasn't in court, and I'm not sure I see whose >legitimate authority is being disrespected. You missed my point entirely. 1. I didn't say that what the article said was going to cause a problem for the defendants. I said the article was an example of the kind of statements that caused a problem for the defendants. 2. It doesn't matter whether it takes place in court. As Judge Kaplan noted: "From some of the evidence submitted by the plaintiffs, it appears clear that there are those in the hacker community and in the Internet community, more broadly, who took the litigation in California as a throwing down of the gauntlet. There appears, although it is not necessary to my decision, to have been an obvious effort in at least some quarters to disseminate DeCSS as broadly and as quickly as possible to make it difficult or impossible to put the genie back in the bottle through legal means." and "The objectives of the websites with which they are connected are reasonably clear. The site with which Mr. Reimerdes is connected invites users to share their DVDs with the world by copying them and, as I mentioned during the course of argument, it contains a notice reading, and I quote: 'The DVD Copy Control Association are cocksuckers.'" and "The site with which Mr. Kazan is connected makes it fairly clear from materials plaintiffs have submitted that it is engaged in something approaching a vendetta against the plaintiffs in this case. It inveighs against the plaintiffs’ efforts to prevent unauthorized copying of their material and makes clear its belief that it has a right to decrypt the plaintiffs’ products and disseminate." 3. It's clear from these excerpts that the authority being disrespected was the court's authority and the copyright holders' authority. 4. What I am saying is that the attempts to, a-hem, circumvent the judge's order, and the rhetoric spouted by the defendants (as on 2600.com), are great PR, but are suicidal when it comes to the legal arena. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 10:39:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29788 for dvd-discuss-outgoing; Thu, 16 Mar 2000 10:39:43 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA29747 for ; Thu, 16 Mar 2000 10:39:39 -0500 Received: (qmail 16405 invoked by uid 60001); 16 Mar 2000 16:53:02 -0000 Message-ID: <20000316165302.16404.qmail@web508.mail.yahoo.com> Received: from [131.44.121.4] by web508.mail.yahoo.com; Thu, 16 Mar 2000 08:53:02 PST Date: Thu, 16 Mar 2000 08:53:02 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Source Code or Object Code? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Kent Nguyen responded to me: > > Again, you have not provided any evidence that the DeCSS > > distributed by the defendants in the NY case was source code. > They took down the source code distributed by 2600. Hmmph. Why should I believe your assertion? Others have asserted it was only the object code. You make statements with no support, even when pressed for it. > > Suppose Kaplan was to grant that DeCSS source code was speech > > otherwise protected by the first amendment. How would you continue > > your arguement? > I don't. I'm happy at that. I'm glad you're not my attorney. Would you recommend that the defendants be "happy" too - they are facing large damages, statutory penalties, and attorneys fees. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 11:02:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA03253 for dvd-discuss-outgoing; Thu, 16 Mar 2000 11:02:36 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA03250 for ; Thu, 16 Mar 2000 11:02:35 -0500 Received: (qmail 17177 invoked by uid 500); 16 Mar 2000 17:21:19 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 17:21:19 -0000 Date: Thu, 16 Mar 2000 09:21:19 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source Code or Object Code? In-Reply-To: <20000316165302.16404.qmail@web508.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Bryan Taylor wrote: > > --- Kent Nguyen responded to me: > > > Again, you have not provided any evidence that the DeCSS > > > distributed by the defendants in the NY case was source code. > > They took down the source code distributed by 2600. > > Hmmph. Why should I believe your assertion? Others have asserted it was > only the object code. You make statements with no support, even when > pressed for it. You don't have to. What happen if I say I was part of the 2600 team? :) > > > > Suppose Kaplan was to grant that DeCSS source code was speech > > > otherwise protected by the first amendment. How would you continue > > > your arguement? > > I don't. I'm happy at that. > > I'm glad you're not my attorney. Would you recommend that the > defendants be "happy" too - they are facing large damages, statutory > penalties, and attorneys fees. I'm sure Jon would. I don't know of other defendants to make a significant contribution of my thoughts into this discussion. Thank you! > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 11:49:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07070 for dvd-discuss-outgoing; Thu, 16 Mar 2000 11:49:31 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA07067 for ; Thu, 16 Mar 2000 11:49:31 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA28346 for ; Thu, 16 Mar 2000 13:02:55 -0500 (EST) Date: Thu, 16 Mar 2000 13:02:55 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RealNetworks v. Streambox In-Reply-To: <20000316160539.99274.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id LAA07068 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Joshua Daub wrote: > >From: Bryan Taylor > >--- Wendy Seltzer wrote: > > > > > One take on the difference between access control and copy control > > > comes from the District Court in Seattle that granted a partial > > > preliminary injunction in RealNetworks v. Streambox: > > > > > > >RealNetworks, Inc. v. Streambox, Inc. No. > >:99CV02070 (W.D. Wash. Jan. 18, 2000) > > > >This is a fascinating case. I think it illustrates many of the finer > >points of the DMCA, in the context I think it was meant for - streaming > >audio and video. > > > >Basically, RealPlayer can be used sort of like a home theater - you can > >be allowed to view or listen to a work without actually licencing it. > >No copy in any form is given to you in any fixed media. Once you see > >the work it 'evaporates'. The copyright owners can flip a "copy switch" > >flag that the client enforces to disallow copying. In order to enforce > >the authority flag, the client obviously must be authenticated. The same analysis, with the possible exception of the "copy switch", can be applied to VCR's. I say possible, because there have been some attempts to protect satelite transmissions with macrovison and the like. > Note, however, the court made a couple of very important distinctions. I > find this case to be incredibly damaging to many arguments on this list. > #1. The court comes to separate conclusions regarding the "secret handshake" > and the "copy switch." > a. The "secret handshake" triggers liability under 1201(a)(2). > b. The "copyswitch" triggers liabiltiy under 1201(b). > c. For purposes of the DVD case, the copy switch is irrelevent, because the > VCR violates the DMCA 1201(a)(2) when it bypasses the "secret handshake" > prior to ignoring the "copy switch." > Quote from the opinion: > "In addition, the argument ignores the fact that before the Copy Switch is > even implicated, the Streambox VCR has already circumvented the Secret > Handshake to gain access to an unauthorized RealMedia file. That alone is > sufficient for liability under the DMCA. See 17 U.S.C. § 1201(I)(e)." > So if the VCR explicitly looked for a "Do not copy' switch, it would still be liable? The judge seems to believe that the only possible use of the Realserver is to protect content, and that individuals placing their files on a Realserver intend to place their products under the strictest access controls. If you have Realserver, why not use it? Now why would someone want to use the VCR in a non-infringing manner? I point out item 30 of the court order. " Streamboxs marketing of the VCR notes that end-users can "[d]ownload RealAudio and RealMedia files as easily as you would any other file, then reap the benefits of clean, unclogged streams straight from your hard drive" and that the product can be used by "savvy surfers who enjoy taking control of their favorite Internet music/video clips"" While I'm not sure that I would agree that "taking control of music/video clips" falls under fair use-- in fact, it borders on infringement (specifically, derivative works), I can attest to the fact that Realmedia content is unwatchable during "prime/time" through a slower modem. Video feeds are particularly non-enjoyable. A VCR like product would certainly expand the potential audience for such streams. Of course, in Sony, (464 US 417, 1984), the argument was made that various broadcasters where amenable to the idea of timeshifting, and that therefore, VCRs were capable of subtantial non-infringing use. Conversely, the use of a VCR to timeshift content in violation of copyright would violate infringement. Sony, though, would not be liable for contributary infringement. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 11:50:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07171 for dvd-discuss-outgoing; Thu, 16 Mar 2000 11:50:32 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA07168 for ; Thu, 16 Mar 2000 11:50:31 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 1DC727708; Thu, 16 Mar 2000 12:04:24 -0600 (CST) Date: Thu, 16 Mar 2000 12:04:24 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Licensing fee for CSS for players? Message-ID: <20000316120424.A2832@arh1176.urh.uiuc.edu> References: <38D0B1E8.E2F3A110@home.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <38D0B1E8.E2F3A110@home.com>; from pfranklin@home.com on Thu, Mar 16, 2000 at 02:05:28AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 02:05:28AM -0800, Phillip Franklin wrote: > "Jeanne A. E. DeVoto" wrote: > > > > > > Does anyone know the fee arrangement for DVD player manufacturers? > I do have one rather broad question for some of the legal experts on this list. My feeling > is that the defendants' actions in this case were similar to reverse engineering. I'm > wondering if the law as to what is now considered reverse engineering will have to be > redrawn from it's early 1980's distinctions. It would seem to me that the plaintiff's > arguments, if valid law, would not accommodate much of the way that the early IBM PC's were > cloned. Basically the clone developers were getting a machine to perform the same > instructions to circumvent the need for a license from IBM on their copyrighted BIOS. If a > clone DVD player were to be "backward engineered" to perform essentially the same set of > instructions that the copyrighted code in a licensed machine could perform, than how is that > different from this clone case? Streching this argument even further, can the publishers of > the software media claim that this in essence violates the use agreement with the end user? > Thus could Sony have a valid license on their program media which states that it would be a > violation of use if the end user were to play that media on any other manufacturer's > machine? Can a license agreement go that far and still be protected by current copyright > law? Was the intent of the copyright legislation to go this far? Or is copyright only to > protect the actual media. Could Microsoft force end users only to run their software on > machines made by a particular manufacturer? So if I purchased Windows 2000 and ran it on > say a G4 would that be a violation of the intent of the copyright? Well, I'm no legal expert, but I've been hanging around this list for long enough that I'll give your question a shot. In the examples you give of licenses that impose limits on the use of a product, are questionably legal. There is only a very limited legal precident about how restrictive they can be. They are not really the same as the DVD cases though, because they are not covered by the DMCA. If Microsoft put a license on W2K, they could sue you for breach of contract (or something similar) if you didn't live up to it's conditions, but copyright would not come into the picture. Only when the issue is decryption or descrambling of copyrighted information does the DMCA rear it's ugly head. The licensing issues around that are about where "Authority" as defined in 1201 comes from. We would like to think that authority to decrypt something comes with the ownership of the media it is stored on. The MPAA would like to argue that the authority is passed down through licenses between the Copyright owner and the DVD-CCA, then from the CCA to Player manufacturers, then to the consumer. If of course, licenses like that are determined to be illegal, then the MPAA's case gets pretty strange, since it is not clear that anyone could decrypt DVDs with proper authority. > Maybe I'm way off legally here. But I find it confusing that copyright legislation was > intended to give the holder this much arbitrary power. If so, then large software > publishers could in essence have unlimited power which would not really be necessary to just > protect their media. Well, you're not alone in wondering why copyright should be turned into the tool of corperations to ensure their absolute control over their products. Thats one of the reasons people are on this list. I hope we can change the law and have it protect us, rather than only protect the corperations. -- Steven Barker scbarker@uiuc.edu From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 12:36:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19895 for dvd-discuss-outgoing; Thu, 16 Mar 2000 12:36:56 -0500 Received: from hotmail.com (law2-f23.hotmail.com [216.32.181.23]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA19891 for ; Thu, 16 Mar 2000 12:36:55 -0500 Received: (qmail 88473 invoked by uid 0); 16 Mar 2000 18:49:45 -0000 Message-ID: <20000316184945.88472.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 10:49:45 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RealNetworks v. Streambox Date: Thu, 16 Mar 2000 13:49:45 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Jeremy A Erwin >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] RealNetworks v. Streambox >Date: Thu, 16 Mar 2000 13:02:55 -0500 (EST) > >On Thu, 16 Mar 2000, Joshua Daub wrote: > > >From: Bryan Taylor > > >--- Wendy Seltzer wrote: > > > > > > > One take on the difference between access control and copy control > > > > comes from the District Court in Seattle that granted a partial > > > > preliminary injunction in RealNetworks v. Streambox: > > > > > > > > > > >RealNetworks, Inc. v. Streambox, Inc. No. > > >:99CV02070 (W.D. Wash. Jan. 18, 2000) > > > > > >This is a fascinating case. I think it illustrates many of the finer > > >points of the DMCA, in the context I think it was meant for - streaming > > >audio and video. > > > > > >Basically, RealPlayer can be used sort of like a home theater - you can > > >be allowed to view or listen to a work without actually licencing it. > > >No copy in any form is given to you in any fixed media. Once you see > > >the work it 'evaporates'. The copyright owners can flip a "copy switch" > > >flag that the client enforces to disallow copying. In order to enforce > > >the authority flag, the client obviously must be authenticated. > >The same analysis, with the possible exception of the "copy switch", can >be applied to VCR's. I say possible, because there have been some attempts >to protect satelite transmissions with macrovison and the like. > > > Note, however, the court made a couple of very important distinctions. >I > > find this case to be incredibly damaging to many arguments on this list. > > #1. The court comes to separate conclusions regarding the "secret >handshake" > > and the "copy switch." > > a. The "secret handshake" triggers liability under 1201(a)(2). > > b. The "copyswitch" triggers liabiltiy under 1201(b). > > c. For purposes of the DVD case, the copy switch is irrelevent, because >the > > VCR violates the DMCA 1201(a)(2) when it bypasses the "secret handshake" > > prior to ignoring the "copy switch." > > Quote from the opinion: > > "In addition, the argument ignores the fact that before the Copy Switch >is > > even implicated, the Streambox VCR has already circumvented the Secret > > Handshake to gain access to an unauthorized RealMedia file. That alone >is > > sufficient for liability under the DMCA. See 17 U.S.C. § 1201(I)(e)." > > > >So if the VCR explicitly looked for a "Do not copy' switch, it would still >be liable? The judge seems to believe that the only possible use of the >Realserver is to protect content, and that individuals placing their files >on a Realserver intend to place their products under the strictest access >controls. If you have Realserver, why not use it? > >Now why would someone want to use the VCR in a non-infringing manner? I >point out item 30 of the court order. >" >Streamboxs marketing of the VCR notes that end-users can "[d]ownload >RealAudio and RealMedia files as easily as you would any other file, then >reap the benefits of clean, unclogged streams straight from your hard >drive" and that the product can be used by "savvy surfers who enjoy taking >control of their favorite Internet music/video clips"" > >While I'm not sure that I would agree that "taking control of music/video >clips" falls under fair use-- in fact, it borders on infringement >(specifically, derivative works), I can attest to the fact that >Realmedia content is unwatchable during "prime/time" through a slower >modem. Video feeds are particularly non-enjoyable. A VCR like product >would certainly expand the potential audience for such streams. Of course, >in Sony, (464 US 417, 1984), the argument was made that various >broadcasters where amenable to the idea of timeshifting, and that >therefore, VCRs were capable of subtantial non-infringing use. Conversely, >the use of a VCR to timeshift content in violation of copyright would >violate infringement. Sony, though, would not be liable for contributary >infringement. Look, read the opinion again: 1. The judge practically says that Sony's fair use analysis does not apply under 1201. 2. Paragraph 30 pertains to the Ripper. For the Ripper, Real Networks did not sue under 1201(a)(2), but only under 1201(b). You cannot just pick and choose which part of the statutes help you. Kaplan chastized the defense for this. You must look at the section the Plaintiffs are using. In the DVD case, it is 1201(a)(2). ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 12:58:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23725 for dvd-discuss-outgoing; Thu, 16 Mar 2000 12:58:01 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA23722 for ; Thu, 16 Mar 2000 12:57:57 -0500 Received: (qmail 4581 invoked by uid 60001); 16 Mar 2000 19:11:21 -0000 Message-ID: <20000316191121.4580.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Thu, 16 Mar 2000 11:11:21 PST Date: Thu, 16 Mar 2000 11:11:21 -0800 (PST) From: Bryan Taylor Subject: RE: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- sparky wrote: > DeCSS is *always* a tool for circumvention. This is a bald assertion. Please provide an arguement based on the text of the law for this. I gave three examples, none of which are circumvention. > The question is whether the circumvention can be lawfully done for > purposes which are not infringing. The question in this thread is whether DeCSS violates 1201(a)(2)(B). I'm arguing that it doesn't. If you want to change the question to whether Congress overstepped it's power by making all violations of 1201(a)(2)(B) unlawful when some are "noninfringing", perhaps you would prefer to move to one of the "fair access" or "fair use" threads. > In essence I agree with your approach, but I don't understand why you > (among others) insist on calling the program something other than a > circumvention device. Because 1201(a)(2)(B) bans trafficking technology with little commercially significant purpose other than to circumvent. I'm providing three such commercially significant purposes. It's pretty straight forward. > Access may be argued to be given in the act of purchase (not because > a right to access is assumed, but simply because the medium in which > the work is fixed is now owned by the purchaser), but that is surely > different, or can be argued to be different, from permission to circumvent > access control. The authority of the copyright holder of which 1201 > speaks is simply permission to circumvent the access control. You are using the words "access" and "circumvent" incorrectly. "Access" is not "given" - this doesn't make sense because access is a act. You should say "authority" to access is given or withheld. You also don't get permission to "circumvent". Since circumvention is defined as access without authority, it is self-contradictory to say you have permission to circumvent. > If we consider the *right to access* to stem from the *permission* of > the copyright holder, and not the circumvention of access control, which > is what is implied in your "Any use where this [access] occurs with the > authority.." you are likening access to use which we require authority of > the copyright holder to do. There is no "right to access", and if there was, it wouldn't require permission from anybody, since a right is something you don't need permission for. When I say "access with the authority", this is the opposite concept of "access without the authority", which is, by definition, circumvention. I am not likening access to use, and use, when it is "fair use" does not require the authority of the copyright holder. I really don't understand what you are saying because you are using the legal language imprecisely. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 13:09:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26734 for dvd-discuss-outgoing; Thu, 16 Mar 2000 13:09:55 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26731 for ; Thu, 16 Mar 2000 13:09:52 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id OAA12330 for ; Thu, 16 Mar 2000 14:21:51 -0500 (EST) Date: Thu, 16 Mar 2000 14:21:51 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RealNetworks v. Streambox In-Reply-To: <20000316184945.88472.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Joshua Daub wrote: > >From: Jeremy A Erwin > >clips" falls under fair use-- in fact, it borders on infringement > >(specifically, derivative works), I can attest to the fact that > >Realmedia content is unwatchable during "prime/time" through a slower > >modem. Video feeds are particularly non-enjoyable. A VCR like product > >would certainly expand the potential audience for such streams. Of course, > >in Sony, (464 US 417, 1984), the argument was made that various > >broadcasters where amenable to the idea of timeshifting, and that > >therefore, VCRs were capable of subtantial non-infringing use. Conversely, > >the use of a VCR to timeshift content in violation of copyright would > >violate infringement. Sony, though, would not be liable for contributary > >infringement. > > Look, read the opinion again: > 1. The judge practically says that Sony's fair use analysis does not apply > under 1201. > 2. Paragraph 30 pertains to the Ripper. For the Ripper, Real Networks did > not sue under 1201(a)(2), but only under 1201(b). > > You cannot just pick and choose which part of the statutes help you. Kaplan > chastized the defense for this. You must look at the section the Plaintiffs > are using. In the DVD case, it is 1201(a)(2). I'm sorry. There are two numbering systems in the court order: one for findings of fact, the other for conclusions of law. I was referring to item 30 of the FoF, which refers to the "Streambox VCR". "Streamboxs marketing of the VCR notes that end-users can "[d]ownload RealAudio and RealMedia files as easily as you would any other file, then reap the benefits of clean, unclogged streams straight from your hard drive" and that the product can be used by "savvy surfers who enjoy taking control of their favorite Internet music/video clips.' I would have liked to see an analyis of whether streambox's VCR would have infringed had it responded to copy protection flags. But you're right, the judge seems to think Sony is immaterial. Oh well. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 13:46:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01381 for dvd-discuss-outgoing; Thu, 16 Mar 2000 13:46:14 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA01376 for ; Thu, 16 Mar 2000 13:46:09 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA15536 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 11:56:44 -0800 Date: Thu, 16 Mar 2000 11:56:44 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Controversial beliefs and statements of defendants/supporters (was: Re: [dvd-discuss] Access control on text from Stephen King. The horror...) Message-ID: <20000316115644.Q13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316164816.45827.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit User-Agent: Mutt/1.0i In-Reply-To: <20000316164816.45827.qmail@hotmail.com>; from jadaub@hotmail.com on Thu, Mar 16, 2000 at 11:48:16AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > >From: "Robert S. Thau" > > >Joshua Daub writes: > > > Courts want to see parties act reasonably. Using language such as > > >"bozo" or "cocksuckers" makes one sound unreasonable. Now, you > > >can't punish someone for using the word "cocksucker," but the > > >contempt for authority, and the implicit unreasonableness, has a > > >detrimental effect: ie your position will not appear to be as > > >reasonable. > > > > >Using strong language in court displays disrepect for authority of the > >court. But this wasn't in court, and I'm not sure I see whose > >legitimate authority is being disrespected. > > You missed my point entirely. > > 1. I didn't say that what the article said was going to cause a problem for > the defendants. I said the article was an example of the kind of statements > that caused a problem for the defendants. > > 2. It doesn't matter whether it takes place in court. As Judge Kaplan > noted: > > "From some of the evidence submitted by the plaintiffs, it appears clear > that there are those in the hacker community and in the Internet community, > more broadly, who took the litigation in California as a throwing down of > the gauntlet. There appears, although it is not necessary to my decision, to > have been an obvious effort in at least some quarters to disseminate DeCSS > as broadly and as quickly as possible to make it difficult or impossible to > put the genie back in the bottle through legal means." > > and > > "The objectives of the websites with which they are connected are reasonably > clear. The site with which Mr. Reimerdes is connected invites users to share > their DVDs with the world by copying them and, as I mentioned during the > course of argument, it contains a notice reading, and I quote: 'The DVD Copy > Control Association are cocksuckers.'" > > and > > "The site with which Mr. Kazan is connected makes it fairly clear from > materials plaintiffs have submitted that it is engaged in something > approaching a vendetta against the plaintiffs in this case. It inveighs > plaintiffs’ products and disseminate." > > 3. It's clear from these excerpts that the authority being disrespected was > the court's authority and the copyright holders' authority. But, of course, many people connected with these cases don't, ahem, believe that (1) there is any controversy about the existence of the > obvious effort in at least some quarters to disseminate DeCSS > as broadly and as quickly as possible to make it difficult or impossible to > put the genie back in the bottle through legal means." or that this effort is a bad thing. (2) there is anything wrong with criticizing > the plaintiffs’ efforts to prevent unauthorized copying of their > material[.] (3) the public _does_ have a right (at least) to decrypt DVDs, if it knows how, and possibly to disseminate them. (4) these courts don't have a right to stop them from distributing DeCSS. (5) copyright holders don't have a right to stop anyone from distributing DeCSS. First question: do you not want to work with people who believe some of these things? Second question: to what extent would you say that people who believe some of these things "should be expected" to refrain from mentioning them during the trial? To refrain from mentioning them in general? Public comments and trials are always a big problem. Yes, there is a (co-ordinated?) international effort to mirror DeCSS and make the rulings of courts useless and irrelevant with respect to its availability. No, the named defendants in these cases are not involved in that effort. (It would be stupid of them to participate, because they would be found in contempt of court.) Clearly the mirroring campaign hurts the defense of the defendants, just because it subjectively annoys judges (directed as it is against the presumed authority of those judges to influence what ultimately happens with the issues that are being tried in their courts), not because of any actual legal principle that it's relevant. (If there's need of an appeal, this issue might come up.) On the other hand, equally clearly the mirroring campaign helps the availability of this particular program. People who endorse the campaign and people who criticize it obviously have rather different views about some of the underlying issues. Since most of the defendants _do_ support the availability of DeCSS, this is a subtle issue; they would presumably not make public statements now about the mirrors (although 2600 does anyway, and I'm tempted to say "more power to them" for their willingness to take such a risk), but the mirroring is done in support of a goal that they probably endorse. This point is fairly close to what you said: > 4. What I am saying is that the attempts to, a-hem, circumvent the judge's > order, and the rhetoric spouted by the defendants (as on 2600.com), are > great PR, but are suicidal when it comes to the legal arena. So I don't think I'm actually disagreeing with you here (my questions above are mainly rhetorical). I'm just trying to emphasize a few things about the situation of anybody "trying to help", and the question of what's "really helping". The legal arena may seem most significant to the subscribers of this list (oriented as it is toward the support of a legal defense effort), but, as I said in an earlier message, there are also other arenas which seem as important or more important to many people connected with these cases. One interesting effect of public statements and outside agitation and publicity might be to force the defense to concentrate on very abstract and general principles. I mean, this is probably already the case with dvd-copy.com, as some of Judge Kaplan's comments indicate; dvd-copy.com was sued _because_ it was openly contemptuous of all sorts of things and may even have simultaneously distributed tools which could be used to facilitate copyright infringement and advocated copyright infringement at the same time. So, I remind the subscribers of this list that you are here volunteering to help defend dvd-copy.com. Do you not want to defend dvd-copy.com? Do you want to encourage the volunteer defense lawyers to volunteer their services only to other defendants? If not, of course, then you have to keep in mind what you are defending. I think that dvd-copy.com was a very good choice of defendant on the part of the plaintiffs: if you can defend dvd-copy.com, you can defend anything! Specifically, many strong arguments which would apply to other defendants based on the factual circumstances surrounding their actions pretty obviously don't apply to dvd-copy.com. So that means that, as far as I can see, the only arguments which could defend them are very general legal arguments, including the particularly important claims about the facial invalidity of parts of 1201. I can make a pretty straightforward analogy. Suppose you are a civil liberties organization and you are trying to defend someone's advocacy of something terribly unpopular and probably illegal. (The most traditional case was draft resistance, because many activists have for a long time encouraged people not to register for the draft, and many people have been arrested and even successfully prosecuted for such advocacy. A more polarizing real-world example would probably be Nazi organizers, whom civil liberties groups have been called upon to defend.) Now, the defendant perhaps doesn't recognize the authority of the court, and has used profanity in the past and maybe continues to, and is very openly disrespectful of the court, the law, and public opinion. (I'm not suggesting "disruptive"; only "disrespecful". No continuing violations of the letter of the law anywhere.) And you want to defend this person -- why? Because you personally like this defendant or what the defendant was doing? No: because the defendant has become symbolic of a very important much broader general principle of which the defendant might be totally unaware. And because you consider it very important to try to secure a good precedent which will help defend other people you _do_ like in the future, and avoid a bad precedent which could be used to perpetrate all kinds of abuses. But of course under the circumstances you don't necessarily get to pick your defendant. It would be _nice_; civil liberties lawyers who want to participate in precedent-setting cases often pick plaintiffs for challenges to things, but they don't usually pick defendants. And in civil procedure, as has been pointed out before, the most controversial and least defensible defendant is probably the one who is going to get sued. (That's not the case with the California lawsuit or everyone in the Federal cases, but I'd suggest that it probably is the case with dvd-copy.com.) Under those circumstances, I submit, you're _really_ stuck sticking to the core principles by which you even care what happens in the case, and engaging in a little of the stereotypical "Your Honor, you may not like this defendant or what he is doing, and even I may not like this defendant or what he is doing, but the First Amendment guarantees this defendant that right, and we, the defense, are relying directly on that and not on our opinions of the circumstances of the defendant himself or of his actions". I mean, maybe the MPAA chose to sue 2600 _because_ they knew that 2600 would keep talking about the case in public the whole time. (For which I don't blame 2600; I respect them and even participate in their campaigns. But that's another list.) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 13:48:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02061 for dvd-discuss-outgoing; Thu, 16 Mar 2000 13:48:59 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA02058 for ; Thu, 16 Mar 2000 13:48:57 -0500 Received: (qmail 18751 invoked by uid 500); 16 Mar 2000 20:07:41 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 20:07:41 -0000 Date: Thu, 16 Mar 2000 12:07:41 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Judge Kaplan talks about Copyright limits speech Reference: http://cryptome.org/dvd-mpaa-3-ht.htm "But this is a circumstance in which there is an obvious need for accommodation between interests in free speech and interests in protection of copyright. " Kaplan acknowledged that this is a protection of copyright in DVD movie. We don't have a problem with that. However there were no proof by the plantiff at the time of the lawsuit shows DeCSS as the SOLE mean to violate protection of copyright. "But we always have to ask ourselves what we are really talking about. The facts say a lot. Putting aside programmer comments, nonexecutable programmer comments, which are not the focus of this application, we are dealing with a set or sets of computer instructions. They are, I am prepared to assume, expressive to some degree. They are much closer to an electronic or a mechanical device for performing an operation on a subject to produce a result. They are a set of instructions which cause a computer to render intelligible a data file on a DVD. If I were to balance the interest in protection of copyrights against the extent to which free dissemination of that set of machine-executable instructions serves the goals traditionally served by protection of speechan informed society, the ability to engage in self-government, the ability to realize social and intellectual goals the balance in my judgment falls on the side of copyright protection, even though I recognize that there is perhaps some interest served on the defendants side of the ledger. " Kaplan neglected the fact that DeCSS source code is not a direct mean to violate copyright protection but, in fact, orginially intended to view DVD movie. Furthermore, the lawsuit file in Santa Clara stated by the plantiff, DVD-CCA, that Linux users have no right to view DVD movie; reference: http://newyen.com/dvd/dvd.htm Section 23. After paying $21.99 for a DVD movie, the MPAA stated clearly we have the right to view the DVD movie. Who give us the right to view DVD movie? From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:09:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07211 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:09:21 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07208 for ; Thu, 16 Mar 2000 14:09:19 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA15583 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 12:19:52 -0800 Date: Thu, 16 Mar 2000 12:19:51 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316121951.T13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316050810.23301.qmail@web505.mail.yahoo.com> <20000316103534.A385@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000316103534.A385@thud.reric.net>; from eds@reric.net on Thu, Mar 16, 2000 at 10:35:34AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > On Wed, Mar 15, 2000 at 09:08:10PM -0800, Bryan Taylor wrote: > > DeCSS has three commercially significant uses other than circumvention. > > Any one of these is enough to disprove 1201(a)(2)(B): > > > > 1) It may be used by DVD-Video content creaters in conjunction with DVD > > authoring tools to test the output. For example, DVDMotion, one such > > authoring tool, requires a player and lists XingDVD as compatible. > > DeCSS + any free mpeg2 player would suffice. > > > > 2) It may be used by copyright holders who have created content with an > > authoring tool to convert that content back to a standard format, for > > example if the originals were damaged, deleted, lost, or otherwise > > inaccessible. > > > Both of these two assume CSS encryption is performed by the DVD authoring > tool (i.e. DVDMotion). Some of the information I've seen (on > technicolor.com for example) implies that CSS encryption is performed only > during creation of the glass master. If true, both (1) and (2) don't > work. Look at page 10 of this document: > > http://www.technicolor.com/services/DVD2000v1.pdf Regardless of when CSS encryption is performed, (2) is still a valid and maybe "commercially significant" use. There are just many reasons why it is _incredibly_ unlikely and also not very helpful to the copyright owner. I mean, if you are an audio copyright holder and you lose all of your digital masters and sources, are you just going to rip your own CD to get your digital data back? Not likely. So a court could say this is de minimis. The plaintiffs can testify that no studio would ever actually do this, even though it is theoretically useful to them in a very unusual situation. Since studios claim that their movies are worth upwards of millions of dollars, just "losing" one would be a major headline event, and probably justify the use of somewhat more sophisticated measures than DeCSS. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:13:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08217 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:13:15 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA08214 for ; Thu, 16 Mar 2000 14:13:14 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA15592 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 12:23:46 -0800 Date: Thu, 16 Mar 2000 12:23:45 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316122345.U13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from kent@newyen.com on Thu, Mar 16, 2000 at 12:07:41PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen writes: > Judge Kaplan talks about Copyright limits speech > > Reference: http://cryptome.org/dvd-mpaa-3-ht.htm > "But this is a circumstance in which there is an obvious need for > accommodation between interests in free speech and interests in protection > of copyright. " > > Kaplan acknowledged that this is a protection of copyright in DVD > movie. We don't have a problem with that. However there were no proof by > the plantiff at the time of the lawsuit shows DeCSS as the SOLE mean to > violate protection of copyright. They don't have to. _Any_ circumvention device would be criminalized by the DMCA, unless it meets one of that act's exceptions. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:19:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09614 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:19:25 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA09611 for ; Thu, 16 Mar 2000 14:19:24 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA24255 for ; Thu, 16 Mar 2000 13:36:00 -0600 Date: Thu, 16 Mar 2000 13:36:00 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Kaplan neglected the fact that DeCSS source code is not a direct mean to > violate copyright protection but, in fact, orginially intended to view DVD > movie. Furthermore, the lawsuit file in Santa Clara stated by the > plantiff, DVD-CCA, that Linux users have no right to view DVD > movie; reference: http://newyen.com/dvd/dvd.htm Section 23. After > paying $21.99 for a DVD movie, the MPAA stated clearly we have the right > to view the DVD movie. When did the MPAA state that we clearly had the right to view the DVD? This is the key point of contention. Is sale, barring any explicit statement otherwise, authorization to access the content of the disc? Does the existence of CSS on the disc establish a clear boundary about how a customer is permitted to access the content? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:32:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12408 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:32:39 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA12405 for ; Thu, 16 Mar 2000 14:32:38 -0500 Received: (qmail 5990 invoked by uid 502); 16 Mar 2000 20:48:25 -0000 Date: Thu, 16 Mar 2000 15:48:25 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316154825.S25270@linuxpower.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 16, 2000 at 12:07:41PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 12:07:41PM -0800, Kent Nguyen wrote: > > Kaplan neglected the fact that DeCSS source code is not a direct mean to > violate copyright protection but, in fact, orginially intended to view DVD > movie. You use the word "fact" very glibly, Kent. I would be curious to know on what you base your assumption that this in indeed a fact. I know what Bryan bases his assumptions on, because he has been so kind as to outline them. What about you? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:34:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12828 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:34:31 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA12823 for ; Thu, 16 Mar 2000 14:34:29 -0500 Received: (qmail 29912 invoked by uid 60001); 16 Mar 2000 20:47:52 -0000 Message-ID: <20000316204752.29911.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Thu, 16 Mar 2000 12:47:52 PST Date: Thu, 16 Mar 2000 12:47:52 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] RealNetworks v. Streambox To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > Note, however, the court made a couple of very important > distinctions. I find this case to be incredibly damaging to many > arguments on this list. Other that the fact that the DMCA actually can be used successfully by a plaintiff, I don't see much that makes me worry in this case. I hope most of the people here have come to grips with the fact that courts will look at 1201 as a "real" law. Having a case that finds someone violated 1201 allows us to look at the key reasoning points and look for distinguishing features. > #1. The court comes to separate conclusions regarding the "secret > handshake" and the "copy switch." > > a. The "secret handshake" triggers liability under 1201(a)(2). The "secret handshake" in Streambox occurs between two computer programs that exchange information and has no analog in DVD, unless the MPAA makes the arguement that the DVD media authenticates the player program using the player key, which would play into our hand for the reverse engineering exception. > b. The "copyswitch" triggers liabiltiy under 1201(b). The absense of any type of DVD "copyswitch" highlights the problems associated with circumvention's definition as access without the authority of "the" copyright holder. The MPAA's members are not all DVD copyright holders and cannot speak for all DVD copyright holders. Does anyone know of anybody who has used DVD authoring tools to make their own DVD-video? > #2. The judge treats access as distinct from use. Judge Kaplan already burst our bubble on this anyway. > #3. The judge treats fair use under the DMCA differently from fair > use prior to the DMCA, using Nimmer. Circumvention tool trafficking is a de novo offense and Kaplan already pointed this out too. This shouldn't allow judges to burry their head in the sand and ignore free speech and free press issues. The question that the court's must answer eventually, is: what protects the First Amendment from 1201 the way that "fair use" protects it from 106. Courts invented fair use for the same reason they'll eventually need to invent "fair access" for. Congress clearly recognized that "fair access" (my term) exists, because they authorized the Librarian of Congress to codify exceptions to it under 1201(a)(1). That they didn't state it as a defense to 1201(a)(2) is no different from the fact that they didn't state "fair use" as a defence to infringement until 1976, by which time it had a long history in commonlaw jurisprudence. Similarly, the "merger doctrine" in not stated in the copyright statues, though it too is a well established defense to infringement. > #4. The judge finds that much of copyright precedent does not apply > (or apply in the same way) under 1201; specifically, presumption of > harm, compliance with fair use, Congress did a half assed job with the DMCA and left many of the critical issues to be reexamined by the courts with little guidance. Anytime this happens, civil liberties are in danger. > #5. The ripper analysis is irrelevant to the DVD case because: > "RealNetworks also alleges that Streambox’s marketing and > distribution of the Ripper violates section 1201(b) (but not section > 1201(a)(2) of the DMCA." I guess my first impression was a little too strong. However, there are some similarities between (b) and (a)(2) that can be exploited. The ripper analysis motivated, somewhat, my posting on "Commercially Significant Uses", so I'll take the arguement up there. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:54:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15735 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:54:11 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA15731 for ; Thu, 16 Mar 2000 14:54:08 -0500 Received: (qmail 7246 invoked by uid 60001); 16 Mar 2000 21:07:26 -0000 Message-ID: <20000316210726.7245.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Thu, 16 Mar 2000 13:07:26 PST Date: Thu, 16 Mar 2000 13:07:26 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > Both of these two assume CSS encryption is performed by the DVD > authoring tool (i.e. DVDMotion). Some of the information I've seen (on > technicolor.com for example) implies that CSS encryption is performed > only during creation of the glass master. If true, both (1) and (2) don't > work. Look at page 10 of this document: > > http://www.technicolor.com/services/DVD2000v1.pdf I don't know what the "glass mastering stage" is. Anybody? I also don't see how a physical process could encrypt data files. Perhaps they are refering to the "special sectors" used to authenticate the DVD. If so, this is only a small part of the process. Can somebody explain this? I do know that DVDMotion's spec sheet refers to needing an authorized DVD-video player to view the resulting output, and mentions XingDVD as compatible. I believe that DeCSS + an mpeg2 player is equivalent to XingDVD. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 14:59:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16277 for dvd-discuss-outgoing; Thu, 16 Mar 2000 14:59:13 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA16274 for ; Thu, 16 Mar 2000 14:59:10 -0500 Received: (qmail 19339 invoked by uid 500); 16 Mar 2000 21:17:58 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 21:17:58 -0000 Date: Thu, 16 Mar 2000 13:17:58 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: <20000316154825.S25270@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000 greslin@linuxpower.org wrote: > On Thu, Mar 16, 2000 at 12:07:41PM -0800, Kent Nguyen wrote: > > > > Kaplan neglected the fact that DeCSS source code is not a direct mean to > > violate copyright protection but, in fact, orginially intended to view DVD > > movie. > > You use the word "fact" very glibly, Kent. I would be curious to know on > what you base your assumption that this in indeed a fact. I know what > Bryan bases his assumptions on, because he has been so kind as to outline > them. What about you? Stated on Bernstein vs DOJ case. They've clearly defined source code. > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:06:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17734 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:06:07 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17731 for ; Thu, 16 Mar 2000 15:06:05 -0500 Received: (qmail 29296 invoked by uid 60001); 16 Mar 2000 21:19:30 -0000 Message-ID: <20000316211930.29295.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Thu, 16 Mar 2000 13:19:30 PST Date: Thu, 16 Mar 2000 13:19:30 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > Both of these two assume CSS encryption is performed by the DVD > authoring tool (i.e. DVDMotion). Some of the information I've seen (on > technicolor.com for example) implies that CSS encryption is performed > only during creation of the glass master. If true, both (1) and (2) don't > work. Look at page 10 of this document: > > http://www.technicolor.com/services/DVD2000v1.pdf Also look at page 14 of the document: "- CSS copy-protection titles (DVD-Video) - The CSS encryption process is conducted during the data transfer from DLT [Digital Linear Tape] to glass master, therefore the DLT and disc contain different data - CSS-licensed workstations that can encrypt the DLT for direct comparison to disc or vice-versa are expected to be available in late 1999" I think this last bullet refers to functionality found in recent high-end DVD authoring software. Does anybody understand this better? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:08:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18255 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:08:06 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA18252 for ; Thu, 16 Mar 2000 15:08:05 -0500 Received: (qmail 6200 invoked by uid 502); 16 Mar 2000 21:23:52 -0000 Date: Thu, 16 Mar 2000 16:23:52 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316162352.U25270@linuxpower.org> References: <20000316154825.S25270@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 16, 2000 at 01:17:58PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 01:17:58PM -0800, Kent Nguyen wrote: > On Thu, 16 Mar 2000 greslin@linuxpower.org wrote: > > > On Thu, Mar 16, 2000 at 12:07:41PM -0800, Kent Nguyen wrote: > > > > > > Kaplan neglected the fact that DeCSS source code is not a direct mean to > > > violate copyright protection but, in fact, orginially intended to view DVD > > > movie. > > > > You use the word "fact" very glibly, Kent. I would be curious to know on > > what you base your assumption that this in indeed a fact. I know what > > Bryan bases his assumptions on, because he has been so kind as to outline > > them. What about you? > > Stated on Bernstein vs DOJ case. They've clearly defined source code. Are you saying that the Bernstein case stated that DeCSS was meant to play DVD's rather than violating copyright protection? I wasn't aware that time machines have been invented; if I recall correctly, the Bernstein ruling happened before DeCSS was even written. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:18:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20917 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:18:00 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA20914 for ; Thu, 16 Mar 2000 15:17:59 -0500 Received: (qmail 19519 invoked by uid 500); 16 Mar 2000 21:36:47 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 21:36:47 -0000 Date: Thu, 16 Mar 2000 13:36:47 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Steve Stearns wrote: > > Kaplan neglected the fact that DeCSS source code is not a direct mean to > > violate copyright protection but, in fact, orginially intended to view DVD > > movie. Furthermore, the lawsuit file in Santa Clara stated by the > > plantiff, DVD-CCA, that Linux users have no right to view DVD > > movie; reference: http://newyen.com/dvd/dvd.htm Section 23. After > > paying $21.99 for a DVD movie, the MPAA stated clearly we have the right > > to view the DVD movie. > > When did the MPAA state that we clearly had the right to view the > DVD? This is the key point of contention. Is sale, barring any explicit > statement otherwise, authorization to access the content of the > disc? Does the existence of CSS on the disc establish a clear boundary > about how a customer is permitted to access the content? If they don't want me to view the DVD movie at time of purchase, they should say so. I went to Circuit City, Best Buy, and Good Guys to ask whether I can view the DVD movie from my purchased DVD media. They replied "are you nuts, you have the right to view the DVD movie." Some don't even want to talk to me, they think I'm an idiot. *Blah* I think public opinion agrees this is an explicit right. > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:23:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21839 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:23:59 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21836 for ; Thu, 16 Mar 2000 15:23:58 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id NAA15743 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 13:34:30 -0800 Date: Thu, 16 Mar 2000 13:34:30 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316133430.X13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316154825.S25270@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from kent@newyen.com on Thu, Mar 16, 2000 at 01:17:58PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen writes: > On Thu, 16 Mar 2000 greslin@linuxpower.org wrote: > > > On Thu, Mar 16, 2000 at 12:07:41PM -0800, Kent Nguyen wrote: > > > > > > Kaplan neglected the fact that DeCSS source code is not a direct mean to > > > violate copyright protection but, in fact, orginially intended to view DVD > > > movie. > > > > You use the word "fact" very glibly, Kent. I would be curious to know on > > what you base your assumption that this in indeed a fact. I know what > > Bryan bases his assumptions on, because he has been so kind as to outline > > them. What about you? > Stated on Bernstein vs DOJ case. They've clearly defined source code. (1) That's not actually relevant to what Rob just asked you. (2) Although I wish that people here were emphasizing this aspect more, because I think it is the single most important part of this case, still _Bernstein_ is only 9th Circuit, which is great for the California case but not that helpful for S.D. New York. I wish that people here were working on more first amendment claims, in order to try to get a precedent equivalent to _Bernstein_ in New York. (Otherwise, other programs released in different circumstances will be subject to attack de novo, because a court can say "The outcome in _Universal v. Reimerdes_ was very favorable to the defendants, but because it was based on the specific circumstances of that case, it is not really relevant here" and proceed to find that some _other_ program violates the DMCA.) But, in the meantime, _Bernstein_ is not a binding precedent in New York (and it's being appealed anyway); if it's cited in court, it can only be cited as a nice case of clear legal writing and analysis which Judge Kaplan is invited to emulate. :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:35:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24527 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:35:02 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24484 for ; Thu, 16 Mar 2000 15:35:00 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id PAA01216 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 15:48:20 -0600 Date: Thu, 16 Mar 2000 15:48:20 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316154820.A1184@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316210726.7245.qmail@web505.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000316210726.7245.qmail@web505.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Mar 16, 2000 at 01:07:26PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 01:07:26PM -0800, Bryan Taylor wrote: > > --- Eric Seppanen wrote: > > > Both of these two assume CSS encryption is performed by the DVD > > authoring tool (i.e. DVDMotion). Some of the information I've seen > (on > > technicolor.com for example) implies that CSS encryption is performed > > only during creation of the glass master. If true, both (1) and (2) > don't > > work. Look at page 10 of this document: > > > > http://www.technicolor.com/services/DVD2000v1.pdf > > I don't know what the "glass mastering stage" is. Anybody? > > I also don't see how a physical process could encrypt data files. > Perhaps they are refering to the "special sectors" used to authenticate > the DVD. If so, this is only a small part of the process. Can somebody > explain this? The "glass master" is a glass disc which is coated with photo-sensitive material. A laser is used to burn content onto it. From this (lots of hand-waving here to cover extra steps) actual molds are made which are used to stamp DVDs. Yes, it's a physical process. But technicolor's reference to CSS being applied "during the glass mastering stage" implies to me that DVDCCA is paranoid enough not to release the CSS algorithm to the DVD-authoring-tool companies. So I theorize that CSS-encryption might only be known by the disc manufacturers. Clearly there's not enough information to be sure. > I do know that DVDMotion's spec sheet refers to needing an authorized > DVD-video player to view the resulting output, and mentions XingDVD as > compatible. I believe that DeCSS + an mpeg2 player is equivalent to XingDVD. Interesting... That would seem to imply that DVDMotion does CSS encryption. But that goes against what we thought so far: that licensed players will refuse to play CSS-encrypted content without keys stored in a special sector on a real DVD. If DVDMotion could create CSS-encrypted content that XingDVD would play from a hard drive, DeCSS would never be necessary; you'd just copy the key-sector onto your hard drive and play! Again, these are all educated guesses; please try to disprove them! Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:39:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25215 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:39:49 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA25194 for ; Thu, 16 Mar 2000 15:39:48 -0500 Received: (qmail 4933 invoked by uid 60001); 16 Mar 2000 21:52:16 -0000 Message-ID: <20000316215216.4932.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Thu, 16 Mar 2000 13:52:16 PST Date: Thu, 16 Mar 2000 13:52:16 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > On Wed, Mar 15, 2000 at 09:08:10PM -0800, Bryan Taylor wrote: > Both of these two assume CSS encryption is performed by the DVD > authoring tool (i.e. DVDMotion). Some of the information I've seen (on > technicolor.com for example) implies that CSS encryption is performed > only during creation of the glass master. If true, both (1) and (2) don't > work. Look at page 10 of this document: > > http://www.technicolor.com/services/DVD2000v1.pdf I read a little more of this document. There's also stuff about CSS on p37. Evidently, Authoring tools traditionally spit out a digital linear tape (DLT) format that is sent to the disc manufacturer. If CSS is going to be applied, the authoring tool tags the appropriate video sectors of the ".vob" files to have CSS applied. When the DLT is sent to the manufacturer, it is pre-processed to encrypt the data. It appears, however, that on p14, as I mentioned before, that in "late 1999" CSS encryption became available at earlier stages of the process, so that it is no longer true that only disc manufacturers do it. Incidentally, my point (2) doesn't depend on who creates the CSS. An author, after sending the DLT to the disc manufacturer, may later want to recover the unencrypted files. Moreover, any OTHER person that the author allows to may want to recover these files. For example, suppose I decide that I want to use an excerpt from somebody's DVD-video training that I obtained legally with permission to do so (authority) I use DeCSS to convert the format back to mpeg and manipulate it accordingly. Incidentally, the company says on p37 that CSS application is free at Technicolor, so it appears that anyone can easily be a copyright owner for CSS encrypted content. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:40:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25364 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:40:17 -0500 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25357 for ; Thu, 16 Mar 2000 15:40:15 -0500 Received: from ppp.anonymizer.com (10-091.015.popsite.net [216.126.187.91]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAB14341 for ; Thu, 16 Mar 2000 13:56:41 -0800 (PST) Message-Id: <4.3.2.20000316134559.04891f00@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 16 Mar 2000 13:51:21 -0800 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: <20000316133430.X13379@cty-alum.org> References: <20000316154825.S25270@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 01:34 PM 3/16/2000 -0800, Seth David Schoen wrote: >(2) Although I wish that people here were emphasizing this aspect more, >because I think it is the single most important part of this case, still >_Bernstein_ is only 9th Circuit, which is great for the California case >but not that helpful for S.D. New York. That's not quite correct. Remember that the 9th Circuit granted en banc review of the initial appellate decision. In effect, that nullifies the appellate decision, so Bernstein is not even the law of the 9th Circuit (California and about 10 other western states). The District Court decision still stands until the 9th gets around to deciding what to do, but the District Court decision is just a trial court decision, not binding law on anyone but the parties. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:41:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25579 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:41:33 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25576 for ; Thu, 16 Mar 2000 15:41:27 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id OAA27618 for ; Thu, 16 Mar 2000 14:58:04 -0600 Date: Thu, 16 Mar 2000 14:58:04 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses In-Reply-To: <20000316210726.7245.qmail@web505.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Bryan Taylor wrote: > > I don't know what the "glass mastering stage" is. Anybody? I believe this is the stage where the actual master copy of the DVD is manufactured. It would seem from this that CSS is never used in the process of producing a DVD until you get to the point of actually creating a master copy for release to market. So therfore the use of DeCSS amongst DVD producers would be unnecessary. > I also don't see how a physical process could encrypt data files. > Perhaps they are refering to the "special sectors" used to authenticate > the DVD. If so, this is only a small part of the process. Can somebody > explain this? I don't think this is referring to a physical process, but rather just a matter of when the data is encoded. If you are creating a DVD, copy control isn't really a concern until you distribute it, so there's no need to incorporate CSS encode/decode in the production tools. It's only at the point of distribution where this is of any value. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:44:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26116 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:44:14 -0500 Received: from hotmail.com (law2-f156.hotmail.com [216.32.181.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA26113 for ; Thu, 16 Mar 2000 15:44:13 -0500 Received: (qmail 79856 invoked by uid 0); 16 Mar 2000 21:57:07 -0000 Message-ID: <20000316215707.79855.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 13:57:06 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] D-DAY Date: Thu, 16 Mar 2000 16:57:06 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Does anyone know the date that the NY trial is to begin? If I remember from the transcript, it was fairly soon. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:50:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26886 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:50:01 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA26883 for ; Thu, 16 Mar 2000 15:50:00 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 16 Mar 2000 14:03:42 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19B4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention or Access? Date: Thu, 16 Mar 2000 14:03:41 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Circumvention -is- access in this scenario. The only real distinction is whether it has been authorized or not. Even the authorized devices must circumvent the access protection mechanism to obtain access. It is just that their circumvention has been authorized by (someone) while DeCSS performs unauthorized circumvention. Where this distinction leads in a legal sense, I don't know. But "access" and "circumvention of access control" seem to be terms for the same action being performed in the presence or absence of authorization. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Jeff Waller [mailto:jeff-w@mindspring.com] > Sent: Wednesday, March 15, 2000 2:57 PM > To: dvd-list > Subject: [dvd-discuss] Circumvention or Access? > > > Ok to reiterate. Does DeCSS circumvent or access? If access that that > all > we need to show. If circumvent then we'd have to come up with some > other defense. I'll try my hand at the argument for access. > > MPAA, DVD-CCA side. Circumvent. Only licensed DVD-Players > are authorized to access CSS encrypted data. > > Our side (one possibility): Access. The act of publication (affixing > the > data in a tangible form avaliable for sale to the public, implies the > authority of access (only one kind of access) to the public > transferred > at time of sale. > > 1) Authority at publication and authority at sale. > a) I argue if authority of access is granted to the public at > publication > then anyone (even someone who has not even purchased a single DVD) > can write any sort of CSS defeating program. Hense DeCSS is > authorized. > b) The nature of CSS. Players hold keys to decrypt the data, hense > defeating CSS for one DVD means you get to read them all (or most > anyway), but that's not our fault. DVD-CCA should have come up > with a better scheme. > c) It can be easily argued the authors had at least 1 legally > purchased > copy of a DVD. > 2) The purpose of DeCSS. The purpose principally is to > decrypt the data > > on a DVD. That is to even use DeCSS one must have (legally) > purchased. > a DVD. CSS is an encryption of the file system (check this) > not just the > MPEG > data; that is the sectors containing .vob data are encrypted directly, > thus > CSS is applicable to the tangible DVD only. > > -Jeff > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:52:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27385 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:52:38 -0500 Received: from hotmail.com (law2-f241.hotmail.com [216.32.181.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA27381 for ; Thu, 16 Mar 2000 15:52:37 -0500 Received: (qmail 27979 invoked by uid 0); 16 Mar 2000 22:05:30 -0000 Message-ID: <20000316220530.27978.qmail@hotmail.com> Received: from 205.147.249.55 by www.hotmail.com with HTTP; Thu, 16 Mar 2000 14:05:30 PST X-Originating-IP: [205.147.249.55] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Date: Thu, 16 Mar 2000 17:05:30 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: greslin@linuxpower.org >You use the word "fact" very glibly, Kent. Why hasn't everyone on the list ignored all posts originating from Kent Nguyen? I stopped reading his posts a couple days ago. It is not like he is suddenly going to say something profound. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:53:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27549 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:53:48 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA27546 for ; Thu, 16 Mar 2000 15:53:47 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA28309 for ; Thu, 16 Mar 2000 15:10:23 -0600 Date: Thu, 16 Mar 2000 15:10:23 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: <20000316133430.X13379@cty-alum.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I wish that people here were working on more first amendment claims, in > order to try to get a precedent equivalent to _Bernstein_ in New York. > (Otherwise, other programs released in different circumstances will be > subject to attack de novo, because a court can say "The outcome in > _Universal v. Reimerdes_ was very favorable to the defendants, but > because it was based on the specific circumstances of that case, it is > not really relevant here" and proceed to find that some _other_ program > violates the DMCA.) The problem here is that this realm seems to be one that the constitution hasn't really clearly set ground rules for. The DMCA is riding around in a lot of legal grey areas about the rights of copyright holders versus the rights of media consumers. If we try to take up the first amendment attack, we may find that the interpretations end up actually enforcing greater limitations than we've had previously. Really I think that the approach that needs to be taken with the DMCA is to get it out of the legal books. Or at the very least, make an effort to ammend that law to clarify a lot of the vagueries that exist in it right now. It is reasonable to want to protect a copyright holder's abilities to: 1) restrict access to their work 2) restrict copying of their work What isn't clear is how the procuedure of authorization from a copyright holder to a media consumer proceeds. There also isn't any clear limitation on what a copyright holder can restrict (fair use rights, etc). Rather than leaving it up to judicial interpretation, this should be fixed at the source. Let's figure out how to win this case, and then devote our efforts to preventing this through legislative means. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 15:56:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28286 for dvd-discuss-outgoing; Thu, 16 Mar 2000 15:56:15 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA28283 for ; Thu, 16 Mar 2000 15:56:13 -0500 Received: (qmail 14008 invoked by uid 502); 16 Mar 2000 22:12:00 -0000 Date: Thu, 16 Mar 2000 17:12:00 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316171200.V25270@linuxpower.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 16, 2000 at 01:36:47PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 01:36:47PM -0800, Kent Nguyen wrote: > On Thu, 16 Mar 2000, Steve Stearns wrote: > > > When did the MPAA state that we clearly had the right to view the > > DVD? This is the key point of contention. Is sale, barring any explicit > > statement otherwise, authorization to access the content of the > > disc? Does the existence of CSS on the disc establish a clear boundary > > about how a customer is permitted to access the content? > > If they don't want me to view the DVD movie at time of purchase, they > should say so. I went to Circuit City, Best Buy, and Good Guys to ask > whether I can view the DVD movie from my purchased DVD media. They > replied "are you nuts, you have the right to view the DVD movie." Some > don't even want to talk to me, they think I'm an idiot. *Blah* No comment, other than to say that the issue Steve is bringing up here is not *whether* you've been given authorization, but *when* and *how*. These aren't trivial questions. They're actually the crux of this whole issue. > I think public opinion agrees this is an explicit right. There are a lot of people who think Kennedy was the first President to use nuclear weapons in war. People are funny. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:00:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28818 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:00:03 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA28815 for ; Thu, 16 Mar 2000 16:00:01 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA28444 for ; Thu, 16 Mar 2000 15:16:35 -0600 Date: Thu, 16 Mar 2000 15:16:35 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Kent Nguyen wrote: > If they don't want me to view the DVD movie at time of purchase, they > should say so. I went to Circuit City, Best Buy, and Good Guys to ask > whether I can view the DVD movie from my purchased DVD media. They > replied "are you nuts, you have the right to view the DVD movie." Some > don't even want to talk to me, they think I'm an idiot. *Blah* > I think public opinion agrees this is an explicit right. The question though is how much value does public opinion hold in a court of law? If it holds any weight at all, how can we illustrate this opinion to the judge in a useful way? Would having a well documented and properly executed public survey be presentable evidence? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:07:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA30119 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:07:14 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA30116 for ; Thu, 16 Mar 2000 16:07:14 -0500 Received: (qmail 20045 invoked by uid 500); 16 Mar 2000 22:26:02 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 22:26:02 -0000 Date: Thu, 16 Mar 2000 14:26:02 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000, Steve Stearns wrote: > Would having a well documented and properly executed public survey be > presentable evidence? I think this kind of propaganda is a great way to convince the court. Microsoft uses this tactic to help their case against DOJ. > > ---Steve > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:12:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA31064 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:12:35 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA31061 for ; Thu, 16 Mar 2000 16:12:34 -0500 Received: from cdpage.com (edsl36.dnvr.uswest.net [209.180.252.36]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id OAA10279 for ; Thu, 16 Mar 2000 14:26:11 -0800 (PST) Message-ID: <38D15F25.54AA645E@cdpage.com> Date: Thu, 16 Mar 2000 15:24:37 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time out References: <20000316215216.4932.qmail@web503.mail.yahoo.com> Content-Type: multipart/alternative; boundary="------------41A288D388D133F3703C9D53" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --------------41A288D388D133F3703C9D53 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Folks - Just so you'll know I'm not ignoring you: I have to take a break for a few days - my husband just had knee surgery, and I have a few other pressing projects of my own. If there are any specific questions regarding DVD technology that aren't answered in the DVD FAQ (not legal points) you can copy them to my personal email. I don't have time to read everything on this list right now. I'll get back as soon as the crisis clears. -- Dana J. Parker Consultant http://www.cdpage.com Contributing editor/standards columnist Emedia magazine http://www.emediapro.net DVD PRO Conference Chair http://www.dvdpro.net I support the Campaign for Audiovisual Free Expression http://www.eff.org/cafe mailto:danapark@ix.netcom.com --------------41A288D388D133F3703C9D53 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Folks -

Just so you'll know I'm not ignoring you: I have to take a break for a few days - my husband just had knee surgery, and I have a few other pressing projects of my own. If there are any specific questions regarding DVD technology that aren't answered in the DVD FAQ (not legal points) you can copy them to my personal email. I don't have time to read everything on this list right now. I'll get back as soon as the crisis clears.

--
Dana J. Parker
Consultant
http://www.cdpage.com
Contributing editor/standards columnist
Emedia magazine
http://www.emediapro.net
DVD PRO Conference Chair
http://www.dvdpro.net
I support the Campaign for Audiovisual Free Expression
http://www.eff.org/cafe

mailto:danapark@ix.netcom.com
  --------------41A288D388D133F3703C9D53-- From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:17:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32576 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:17:47 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242688hfc235.tampabay.rr.com [24.26.88.235]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA32573 for ; Thu, 16 Mar 2000 16:17:46 -0500 Received: (qmail 22107 invoked by uid 502); 16 Mar 2000 22:33:32 -0000 Date: Thu, 16 Mar 2000 17:33:32 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316173332.X25270@linuxpower.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Kent Nguyen on Thu, Mar 16, 2000 at 02:26:02PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 02:26:02PM -0800, Kent Nguyen wrote: > On Thu, 16 Mar 2000, Steve Stearns wrote: > > > Would having a well documented and properly executed public survey be > > presentable evidence? > > I think this kind of propaganda is a great way to convince the > court. Microsoft uses this tactic to help their case against DOJ. Yeah. It helped Microsoft's case so much that Judge Jackson found against them in his findings of fact. You do know this, don't you? Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:22:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01500 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:22:50 -0500 Received: from mtiwmhc26.worldnet.att.net (mtiwmhc26.worldnet.att.net [204.127.131.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA01497 for ; Thu, 16 Mar 2000 16:22:49 -0500 Received: from alaptop.hotwired.com ([12.78.116.214]) by mtiwmhc26.worldnet.att.net (InterMail vM.4.01.02.31a 201-229-119-114) with ESMTP id <20000316223135.DNLB14555.mtiwmhc26.worldnet.att.net@alaptop.hotwired.com> for ; Thu, 16 Mar 2000 22:31:35 +0000 Message-Id: <4.3.0.20000316173328.020e2120@pop.webcom.com> X-Sender: y2kc@pop.webcom.com X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 16 Mar 2000 17:34:28 -0500 To: dvd-discuss@eon.law.harvard.edu From: Declan McCullagh Subject: Re: [dvd-discuss] D-DAY In-Reply-To: <20000316215707.79855.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The trial could begin this fall, or perhaps next year. Reread the transcript. -Declan (who's not actually reading this list anymore because of the noise, but saw an interesting Subject: line) At 16:57 3/16/2000 -0500, Joshua Daub wrote: >Does anyone know the date that the NY trial is to begin? > >If I remember from the transcript, it was fairly soon. >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:22:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01533 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:22:56 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA01512 for ; Thu, 16 Mar 2000 16:22:54 -0500 Received: (qmail 11822 invoked by uid 60001); 16 Mar 2000 22:36:15 -0000 Message-ID: <20000316223615.11821.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Thu, 16 Mar 2000 14:36:15 PST Date: Thu, 16 Mar 2000 14:36:15 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Source Code or Object Code? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Kent Nguyen wrote back to me: > > Hmmph. Why should I believe your assertion? Others have > > asserted it was only the object code. You make statements > > with no support, even when pressed for it. > You don't have to. What happen if I say I was part of the 2600 team? My point is you are not offering evidence. Evidence is useful, assersions are not. If you were part of the 2600 team you should be able to easily cough up some evidence of what they had on their web site. I only trust what I can verify, and I can't verify anything you've said. Moreover, it appears YOU can't even verify what you've said, which makes me wonder if you're just making stuff up and hoping it's true. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:24:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01873 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:24:29 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA01870 for ; Thu, 16 Mar 2000 16:24:28 -0500 Received: (qmail 20271 invoked by uid 500); 16 Mar 2000 22:43:13 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 16 Mar 2000 22:43:13 -0000 Date: Thu, 16 Mar 2000 14:43:13 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: <20000316173332.X25270@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000 greslin@linuxpower.org wrote: > On Thu, Mar 16, 2000 at 02:26:02PM -0800, Kent Nguyen wrote: > > On Thu, 16 Mar 2000, Steve Stearns wrote: > > > > > Would having a well documented and properly executed public survey be > > > presentable evidence? > > > > I think this kind of propaganda is a great way to convince the > > court. Microsoft uses this tactic to help their case against DOJ. > > Yeah. It helped Microsoft's case so much that Judge Jackson found against > them in his findings of fact. You do know this, don't you? Oki, bad example. Though it got Jackson to appoint a special guest to the court: Richard Posner. :) > > Rob Warren > greslin@linuxpower.org > www.iag.net/~aleris > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02234 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:25:44 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02231 for ; Thu, 16 Mar 2000 16:25:42 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA29494 for ; Thu, 16 Mar 2000 15:42:19 -0600 Date: Thu, 16 Mar 2000 15:42:19 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > Would having a well documented and properly executed public survey be > > presentable evidence? > I think this kind of propaganda is a great way to convince the > court. Microsoft uses this tactic to help their case against DOJ. Considering how M$'s case has been going, I don't know that we want to use their legal tactics :) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:29:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02693 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:29:21 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA02690 for ; Thu, 16 Mar 2000 16:29:19 -0500 Received: (qmail 11998 invoked by uid 60001); 16 Mar 2000 22:42:33 -0000 Message-ID: <20000316224233.11997.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Thu, 16 Mar 2000 14:42:33 PST Date: Thu, 16 Mar 2000 14:42:33 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steve Stearns wrote: > When did the MPAA state that we clearly had the right to view the > DVD? This is the key point of contention. Is sale, barring any > explicit statement otherwise, authorization to access the content of the > disc? Please grab your favorite DVD and read the explicit statement on the copyright notice. It should say something like "This DVD is for home viewing only...". __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:45:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04911 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:45:27 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA04908 for ; Thu, 16 Mar 2000 16:45:25 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA01489 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 16:58:48 -0600 Date: Thu, 16 Mar 2000 16:58:48 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316165848.A1413@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316220530.27978.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000316220530.27978.qmail@hotmail.com>; from jadaub@hotmail.com on Thu, Mar 16, 2000 at 05:05:30PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 16, 2000 at 05:05:30PM -0500, Joshua Daub wrote: > > > >From: greslin@linuxpower.org > > >You use the word "fact" very glibly, Kent. > > Why hasn't everyone on the list ignored all posts originating from Kent > Nguyen? I stopped reading his posts a couple days ago. It is not like he > is suddenly going to say something profound. His first post was March 8th, 8 days ago. Since then he's posted 34 times, more than ANYONE else on the list. Almost every message so far is wildly inaccurate... unfortunately Joshua's right. Maybe if we ignore him he'll go away. Sorry, Kent, nothing personal. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 16:47:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05076 for dvd-discuss-outgoing; Thu, 16 Mar 2000 16:47:45 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA05073 for ; Thu, 16 Mar 2000 16:47:42 -0500 Received: (qmail 10977 invoked by uid 60001); 16 Mar 2000 23:01:06 -0000 Message-ID: <20000316230106.10976.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Thu, 16 Mar 2000 15:01:06 PST Date: Thu, 16 Mar 2000 15:01:06 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steve Stearns wrote: > The question though is how much value does public opinion hold in a > court of law? If it holds any weight at all, how can we illustrate this > opinion to the judge in a useful way? Would having a well > documented and properly executed public survey be presentable > evidence? I don't think it's so much public opinion that matters, so much as what a typical reasonable and informed person would believe they were purchasing. You buy a disc that says "for home viewing only". The MPAA now argues that this means you have to use a licenced player, but no language on any DVD supports this. I think any reasonable person would conclude they are now repudiating the permission they gave in their copyright notice. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:05:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA06401 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:05:46 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA06398 for ; Thu, 16 Mar 2000 17:05:44 -0500 Received: (qmail 13685 invoked by uid 60001); 16 Mar 2000 23:19:09 -0000 Message-ID: <20000316231909.13684.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Thu, 16 Mar 2000 15:19:09 PST Date: Thu, 16 Mar 2000 15:19:09 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > Remember that the 9th Circuit granted en banc review of the initial > appellate decision. In effect, that nullifies the appellate > decision, so Bernstein is not even the law of the 9th Circuit (California > and about 10 other western states). > > The District Court decision still stands until the 9th gets around to > deciding what to do, but the District Court decision is just a trial > court decision, not binding law on anyone but the parties. Berstein and the goverment have now asked that the case be remanded back to the district court since the Clinton administration has altered it's policy on encryption code (again). http://www.eff.org/bernstein/20000303_bernstein_pr.html Assuming that this occurs, the En banc review would assumably not occur. Either way, what is so powerful about the 9th circuit's appeals ruling in Bernstein was it's refutation of the "source code is for controlling a computer" idea. Judge Kaplan, for example, slipped into this trap. He obviously hadn't actually read Bernstein. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:11:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07421 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:11:33 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07418 for ; Thu, 16 Mar 2000 17:11:33 -0500 Received: from mindspring.com (user-2ivf2cc.dialup.mindspring.com [165.247.137.140]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id SAA28944 for ; Thu, 16 Mar 2000 18:24:57 -0500 (EST) Message-ID: <38D16C64.6547A24F@mindspring.com> Date: Thu, 16 Mar 2000 18:21:08 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <5A8391CA2D9ED311AFAA080009D982B10B19B4@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > Circumvention -is- access in this scenario. The > only real distinction is whether it has been authorized > or not. That's what I thought too, but in fact that's not correct. It has been argued in a previous thread the following 2 definitions with respect to 1201. Definition of circumvent: To circumvent is to descramble, decrypt, etc without authority of the copyright holder. Definition of access: To access is to descramble, decrypt, etc with authority of the copyright holder. Hense the phrase authorized circumvention is oxymoronic and authorized access is tautological. > Even the authorized devices must circumvent the > access protection mechanism to obtain access. It > is just that their circumvention has been authorized > by (someone) while DeCSS performs unauthorized > circumvention. > > Where this distinction leads in a legal sense, I > don't know. [ ...] there you go. > > access control" seem to be terms for the same > action being performed in the presence or absence > of authorization. > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! > > > -----Original Message----- > > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > Sent: Wednesday, March 15, 2000 2:57 PM > > To: dvd-list > > Subject: [dvd-discuss] Circumvention or Access? > > > > > > Ok to reiterate. Does DeCSS circumvent or access? If access that that > > all > > we need to show. If circumvent then we'd have to come up with some > > other defense. I'll try my hand at the argument for access. > > > > MPAA, DVD-CCA side. Circumvent. Only licensed DVD-Players > > are authorized to access CSS encrypted data. > > > > Our side (one possibility): Access. The act of publication (affixing > > the > > data in a tangible form avaliable for sale to the public, implies the > > authority of access (only one kind of access) to the public > > transferred > > at time of sale. > > > > 1) Authority at publication and authority at sale. > > a) I argue if authority of access is granted to the public at > > publication > > then anyone (even someone who has not even purchased a single DVD) > > can write any sort of CSS defeating program. Hense DeCSS is > > authorized. > > b) The nature of CSS. Players hold keys to decrypt the data, hense > > defeating CSS for one DVD means you get to read them all (or most > > anyway), but that's not our fault. DVD-CCA should have come up > > with a better scheme. > > c) It can be easily argued the authors had at least 1 legally > > purchased > > copy of a DVD. > > 2) The purpose of DeCSS. The purpose principally is to > > decrypt the data > > > > on a DVD. That is to even use DeCSS one must have (legally) > > purchased. > > a DVD. CSS is an encryption of the file system (check this) > > not just the > > MPEG > > data; that is the sectors containing .vob data are encrypted directly, > > thus > > CSS is applicable to the tangible DVD only. > > > > -Jeff > > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:12:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07550 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:12:09 -0500 Received: from dwaal.net ([216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07510 for ; Thu, 16 Mar 2000 17:12:08 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id AAA23789 for ; Fri, 17 Mar 2000 00:25:32 +0100 (CET) From: "tser" To: Subject: RE: [dvd-discuss] Who give us the right to view DVD movie? Date: Fri, 17 Mar 2000 00:11:22 +0100 Message-ID: <000401bf8f9c$f2b21350$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <20000316224233.11997.qmail@web503.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >> When did the MPAA state that we clearly had the right to view the >> DVD? This is the key point of contention. Is sale, barring any >> explicit statement otherwise, authorization to access the content of >>the > disc? >Please grab your favorite DVD and read the explicit statement on the >copyright notice. It should say something like "This DVD is for home >viewing only...". Hi. dvd often says " For Sale or Rental for home _use_ in the Usa/Canada only,blablabla It says "use" not "viewing" (this is a quote from the matrix dvd) I may use it at Home. do whatever i can do when "using it". As a dummy citizen i could "use it in my dvd player" or "use it as a plaid for Cups of soap" or "use it under my microscope " or "use it to study decription with" ------- Offtopic : So Amazon sold me this dvd hightly illegally cause i do not life in the above country:-) From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:16:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08514 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:16:37 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08511 for ; Thu, 16 Mar 2000 17:16:37 -0500 Received: from mindspring.com (user-2ivf2cc.dialup.mindspring.com [165.247.137.140]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id SAA28744 for ; Thu, 16 Mar 2000 18:30:01 -0500 (EST) Message-ID: <38D16D95.912371F6@mindspring.com> Date: Thu, 16 Mar 2000 18:26:13 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen wrote: > On Thu, 16 Mar 2000, Steve Stearns wrote: > > > Would having a well documented and properly executed public survey be > > presentable evidence? > > I think this kind of propaganda is a great way to convince the > court. Microsoft uses this tactic to help their case against DOJ. > Troll! Troll! I called it! It's all me, baby. How many points do I get? -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:26:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10973 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:26:51 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10950 for ; Thu, 16 Mar 2000 17:26:49 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 16 Mar 2000 15:40:26 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19B5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention or Access? Date: Thu, 16 Mar 2000 15:40:25 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > > Richard Hartman wrote: > > > Circumvention -is- access in this scenario. The > > only real distinction is whether it has been authorized > > or not. > > That's what I thought too, but in fact that's not correct. > It has been argued in a previous thread the following > 2 definitions with respect to 1201. In the thread entitled "The "authorization" argument, revisited..." (3 messages, between Ian Hay and Paul Fennimore ... which I read only after posting the msg to which you responded), Ian seems to be making the same point I am bringing up, but w/ much more legal expertise behind it. He then follows up w/ trying to pin down the point at which authorization is (or can be) granted -- which seems to be at the point of sale of the DVD. > > Definition of circumvent: > > To circumvent is to descramble, decrypt, etc without > authority of the copyright holder. > > Definition of access: > > To access is to descramble, decrypt, etc with > authority of the copyright holder. > > Hense the phrase authorized circumvention is > oxymoronic and authorized access is tautological. Yes, that is basically what I was saying too. The two phrases refer to the same action being taken with the only difference being the presence or absence of authorization. This is why Ian's point about the point of authorization becomes so important. If authorization occurs at point of sale of the DVD then the device by which you obtain access is immaterial. Read the first msg by Ian in that other thread. > > > Even the authorized devices must circumvent the > > access protection mechanism to obtain access. It > > is just that their circumvention has been authorized > > by (someone) while DeCSS performs unauthorized > > circumvention. > > > > Where this distinction leads in a legal sense, I > > don't know. [ ...] > > there you go. Actually after reading Ian's msg I have a clearer idea of where that leaves us: attempting to determine the point at which access becomes authorized. Since it is authorized explicitly neither at point of DVD sale nor at point of player sale, it must be -implicitly- authorized at some point ... and the only point at which that makes sense is at point of sale of the DVD itself. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:33:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12135 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:33:06 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12132 for ; Thu, 16 Mar 2000 17:33:05 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA15979 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 15:43:41 -0800 Date: Thu, 16 Mar 2000 15:43:41 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316154341.B13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316154825.S25270@linuxpower.org> <20000316133430.X13379@cty-alum.org> <4.3.2.20000316134559.04891f00@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.3.2.20000316134559.04891f00@cyberpass.net>; from j.s.tyre@cyberpass.net on Thu, Mar 16, 2000 at 01:51:21PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu James S. Tyre writes: > At 01:34 PM 3/16/2000 -0800, Seth David Schoen wrote: > > > >(2) Although I wish that people here were emphasizing this aspect more, > >because I think it is the single most important part of this case, still > >_Bernstein_ is only 9th Circuit, which is great for the California case > >but not that helpful for S.D. New York. > > > That's not quite correct. > > Remember that the 9th Circuit granted en banc review of the initial > appellate decision. In effect, that nullifies the appellate decision, so > Bernstein is not even the law of the 9th Circuit (California and about 10 > other western states). > > The District Court decision still stands until the 9th gets around to > deciding what to do, but the District Court decision is just a trial court > decision, not binding law on anyone but the parties. Sorry, I alluded to that somewhere else, but I forgot to mention it again here. I think the defendants in California actually said that _Bernstein_ "cannot be cited to this court", so I don't know why I forgot about that when I wrote the paragraph above. Maybe it was wishful thinking -- I really, really, really, really wish that _Bernstein_ could be cited in Santa Clara County. :-) What happens when a precedent comes out or disappears during an unrelated case in a lower court? -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:38:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12719 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:38:01 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12716 for ; Thu, 16 Mar 2000 17:38:00 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA15989 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 15:48:36 -0800 Date: Thu, 16 Mar 2000 15:48:36 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Message-ID: <20000316154836.C13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316231909.13684.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000316231909.13684.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Mar 16, 2000 at 03:19:09PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Assuming that this occurs, the En banc review would assumably not > occur. That would be interesting. But wouldn't the lower precedent still be inapplicable, because Judge Patel (wasn't it?) says that source code is speech in the context of a decision she is now supposed to reconsider? I mean, she might make the same finding again, if she hasn't changed her mind in the interim. > Either way, what is so powerful about the 9th circuit's appeals > ruling in Bernstein was it's refutation of the "source code is for > controlling a computer" idea. > > Judge Kaplan, for example, slipped into this trap. He obviously hadn't > actually read Bernstein. Maybe he read _Bernstein_ and _Junger_ both and decided _Junger_ was right. Maybe he read _Bernstein_ and said "Silly 9th Circuit, that's where all those radical computer geeks live, isn't it?" :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 17:47:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13936 for dvd-discuss-outgoing; Thu, 16 Mar 2000 17:47:14 -0500 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13932 for ; Thu, 16 Mar 2000 17:47:13 -0500 Received: from ppp.anonymizer.com (07-134.015.popsite.net [216.126.186.134]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id QAA17968 for ; Thu, 16 Mar 2000 16:03:42 -0800 (PST) Message-Id: <4.3.2.20000316155100.054e47e0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3 Date: Thu, 16 Mar 2000 15:58:22 -0800 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? In-Reply-To: <20000316154341.B13379@cty-alum.org> References: <4.3.2.20000316134559.04891f00@cyberpass.net> <20000316154825.S25270@linuxpower.org> <20000316133430.X13379@cty-alum.org> <4.3.2.20000316134559.04891f00@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 03:43 PM 3/16/2000 -0800, Seth David Schoen wrote: >Maybe it was wishful thinking -- I really, really, really, really wish that >_Bernstein_ could be cited in Santa Clara County. :-) Likewise. >What happens when a precedent comes out or disappears during an unrelated >case in a lower court? Real time law, and I've had it work both for and against my clients over the years. The bad guys sue my client, based on the state of the law at the time. While the case is pending, the 9th Circ. decides an unrelated case which is highly favorable to my side, we get to use it. The bad guys sue my client, based on a 9th Circ. opinion highly favorable to them. While the case is pending, the USSC, in an unrelated case, effectively overrules the 9th circ. precedent. The bad guys in my case can't use the 9th circ. case any more. I, of course, never represent bad guys. ;-) -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 18:06:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17419 for dvd-discuss-outgoing; Thu, 16 Mar 2000 18:06:04 -0500 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17416 for ; Thu, 16 Mar 2000 18:06:02 -0500 Received: from mindspring.com (user-2ivf6br.dialup.mindspring.com [165.247.153.123]) by granger.mail.mindspring.net (8.9.3/8.8.5) with ESMTP id TAA28346 for ; Thu, 16 Mar 2000 19:19:27 -0500 (EST) Message-ID: <38D1792B.1AFF396B@mindspring.com> Date: Thu, 16 Mar 2000 19:15:39 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <5A8391CA2D9ED311AFAA080009D982B10B19B5@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > Definition of circumvent: > > > > To circumvent is to descramble, decrypt, etc without > > authority of the copyright holder. > > > > Definition of access: > > > > To access is to descramble, decrypt, etc with > > authority of the copyright holder. > > > > Hense the phrase authorized circumvention is > > oxymoronic and authorized access is tautological. > > Yes, that is basically what I was saying too. The > two phrases refer to the same action being taken > with the only difference being the presence or > absence of authorization. This is why Ian's point > about the point of authorization becomes so important. > If authorization occurs at point of sale of the DVD > then the device by which you obtain access is immaterial. > Right, and now given that. Since DeCSS can only be used on a physical DVD, it cannot cimcumvent. It can only access and hense does not violate 1201 a (2) > > Read the first msg by Ian in that other thread. > > > > > > Even the authorized devices must circumvent the > > > access protection mechanism to obtain access. It > > > is just that their circumvention has been authorized > > > by (someone) while DeCSS performs unauthorized > > > circumvention. > > > > > > Where this distinction leads in a legal sense, I > > > don't know. [ ...] > > > > there you go. > > Actually after reading Ian's msg I have a clearer > idea of where that leaves us: attempting to determine > the point at which access becomes authorized. Since > it is authorized explicitly neither at point of DVD > sale nor at point of player sale, it must be -implicitly- > authorized at some point ... and the only point at > which that makes sense is at point of sale of the DVD > itself. Well from what I've read that's arguable, certainly MPAA will not argue for authorization at point of sale or any time prior to actual decrypting by licensed players. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 18:19:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19592 for dvd-discuss-outgoing; Thu, 16 Mar 2000 18:19:55 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA19588 for ; Thu, 16 Mar 2000 18:19:55 -0500 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA20597 for ; Thu, 16 Mar 2000 18:33:17 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 18:32:22 -0600 Message-ID: <000501bf8fa8$42ed7840$e57945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316082853.A943@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > > Sorry I barked. Here are the two ref's I know of: No worries mate. > > Date: Tue, 7 Mar 2000 14:06:58 -0800 (PST) > From: Bryan Taylor > Subject: Re: [dvd-discuss] Filing a strategy? > To: dvd-discuss@eon.law.harvard.edu > Precedence: bulk > Reply-To: dvd-discuss@eon.law.harvard.edu > > Date: Tue, 7 Mar 2000 17:32:05 -0500 > From: greslin@linuxpower.org > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Filing a strategy? > X-Mailer: Mutt 0.95.4us > In-Reply-To: <20000307220658.7237.qmail@web502.mail.yahoo.com>; from Bryan > +Taylor on Tue, Mar 07, 2000 at 02:06:58PM -0800 > Precedence: bulk > Reply-To: dvd-discuss@eon.law.harvard.edu > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 19:31:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11175 for dvd-discuss-outgoing; Thu, 16 Mar 2000 19:31:20 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA11172 for ; Thu, 16 Mar 2000 19:31:19 -0500 Received: from bugbug (max01-51.suba.com [206.69.121.243]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA23410 for ; Thu, 16 Mar 2000 19:44:41 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 19:43:47 -0600 Message-ID: <000801bf8fb2$3c80fc20$e57945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316082853.A943@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry, Paul, I'm going over the posts in the string document I made for Strategy, posts for 3/7; I don't see any reference to "no overlap". sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore > Sent: Thursday, March 16, 2000 9:29 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Commercially Significant Uses > > > Sorry I barked. Here are the two ref's I know of: > > Date: Tue, 7 Mar 2000 14:06:58 -0800 (PST) > From: Bryan Taylor > Subject: Re: [dvd-discuss] Filing a strategy? > To: dvd-discuss@eon.law.harvard.edu > Precedence: bulk > Reply-To: dvd-discuss@eon.law.harvard.edu > > Date: Tue, 7 Mar 2000 17:32:05 -0500 > From: greslin@linuxpower.org > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Filing a strategy? > X-Mailer: Mutt 0.95.4us > In-Reply-To: <20000307220658.7237.qmail@web502.mail.yahoo.com>; from Bryan > +Taylor on Tue, Mar 07, 2000 at 02:06:58PM -0800 > Precedence: bulk > Reply-To: dvd-discuss@eon.law.harvard.edu > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 21:04:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03113 for dvd-discuss-outgoing; Thu, 16 Mar 2000 21:04:45 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA03109 for ; Thu, 16 Mar 2000 21:04:43 -0500 Received: from bugbug (max01-10.suba.com [206.69.121.202]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA26498 for ; Thu, 16 Mar 2000 21:18:05 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 21:17:09 -0600 Message-ID: <000a01bf8fbf$47fdbcc0$e57945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316191121.4580.qmail@web507.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan wrote: > > --- sparky wrote: > > > DeCSS is *always* a tool for circumvention. > > This is a bald assertion. Please provide an arguement based on the text > of the law for this. I gave three examples, none of which are > circumvention. My reasoning behind the statement was basically that CSS is the MPAA's access control measure, and DeCSS defeats it. However, your statement below makes it clear that your statement to which I reacted was a conclusion. So I step back. > > > The question is whether the circumvention can be lawfully done for > > purposes which are not infringing. > > The question in this thread is whether DeCSS violates 1201(a)(2)(B). > I'm arguing that it doesn't. If you want to change the question to > whether Congress overstepped it's power by making all violations of > 1201(a)(2)(B) unlawful when some are "noninfringing", perhaps you would > prefer to move to one of the "fair access" or "fair use" threads. Fine, I'll just respond to this post, and then back off. > > > In essence I agree with your approach, but I don't understand why you > > (among others) insist on calling the program something other than a > > circumvention device. > > Because 1201(a)(2)(B) bans trafficking technology with little > commercially significant purpose other than to circumvent. I'm > providing three such commercially significant purposes. It's pretty > straight forward. Taking a step back as I have, I guess a more pertinent response would be to your 3 points. Yes, the DVD content creators could use it to test their output; and the copyright holders could use it for archival purposes (which raises a question, does DeCSS allow a DVD holder to make useful archival copies? sorry, not as up on my DeCSS-lore as I'd like); and yes, consumers could use DeCSS to defeal access control where there is no more valid copyright. The difficulties I see, however, are that the first two non-infringing uses are hypothetical, which is I guess Seth's de minimis claim. Have these situations happened? No. Will they happen? I feel the chances are, for purposes of argumetation, not measureable. Your third point, since it is also a hypothetical non-infringing use, would probably carry more powerfully if you pulled out the implicit statement within it to criticize the law itself (which you have done elsewhere): that the law makes no provision for works whose copyrights have expired; therefore, conflict between the term of copyright and the term of protection granted by access control. Although, as long as we are being precise, does DeCSS actually "remove" access control? Or does it just circumvent it? If DeCSS makes useable copies of the movies on DVDs, this would probably constitute "removal", and a court *might* listen to that argument; however, it seems rather farther than one needs to go, since if DeCSS does that, all you have to do in order to show it has non-infringing uses is to point out that consumers cannot make archival backup copies of their DVDs without it, which is a use which is allowed for not just public domain DVDs, but any DVD (this also has the advantage of not being a hypothetical situation). > > > Access may be argued to be given in the act of purchase (not because > > a right to access is assumed, but simply because the medium in which > > the work is fixed is now owned by the purchaser), but that is surely > > different, or can be argued to be different, from permission to > circumvent > > access control. The authority of the copyright holder of which 1201 > > speaks is simply permission to circumvent the access control. > > You are using the words "access" and "circumvent" incorrectly. "Access" > is not "given" - this doesn't make sense because access is a act. You > should say "authority" to access is given or withheld. You also don't > get permission to "circumvent". Since circumvention is defined as > access without authority, it is self-contradictory to say you have > permission to circumvent. Mea culpa. I meant "authority to access" when I said access ("Permission to access may be argued to be [granted] in the act of [sale, rather than purchase].."). In regard to "circumvention" you are incorrect. 1201(a)(3)(A), which defines circumvention, says nothing of "access". It is not the act of access which 1201 outlaws, but the circumvention of an access control measure (which is why, as you are aware, someone who has legally bought a DVD is still restrained by 1201). Following Nimmer, it is breaking without the entering. So, circumvention is not "access without authority". Of course, if you give someone permission to gain access to a work , you could argue that you *also* have given that person permission to circumvent the access control measure (though this would probably hinge on circumstances). > > > If we consider the *right to access* to stem from the *permission* of > > the copyright holder, and not the circumvention of access control, > which > > is what is implied in your "Any use where this [access] occurs with > the > > authority.." you are likening access to use which we require > authority of > the copyright holder to do. > > There is no "right to access", and if there was, it wouldn't require > permission from anybody, since a right is something you don't need > permission for. When I say "access with the authority", this is the > opposite concept of "access without the authority", which is, by > definition, circumvention. I am not likening access to use, and use, > when it is "fair use" does not require the authority of the copyright > holder. > > I really don't understand what you are saying because you are using the > legal language imprecisely. I misunderstood your use of "use" to mean use of a work, not DeCSS, so disregard that response. sparky > > > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 21:18:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05110 for dvd-discuss-outgoing; Thu, 16 Mar 2000 21:18:28 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA05106 for ; Thu, 16 Mar 2000 21:18:27 -0500 Received: (qmail 18642 invoked by uid 60001); 17 Mar 2000 03:31:50 -0000 Message-ID: <20000317033150.18641.qmail@web507.mail.yahoo.com> Received: from [24.28.154.65] by web507.mail.yahoo.com; Thu, 16 Mar 2000 19:31:50 PST Date: Thu, 16 Mar 2000 19:31:50 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > Bryan Taylor writes: > > > Assuming that this occurs, the En banc review would assumably not > > occur. > > That would be interesting. But wouldn't the lower precedent still be > inapplicable, because Judge Patel (wasn't it?) says that source code > is speech in the context of a decision she is now supposed to > reconsider? I would think it would be applicable, because it was never overturned.It just wasn't enforced, because the facts changed. It would sort of be like the Supreme Court granting certiorari, then changing it's mind and not hearing the case. Net effect: no certiorari, lower court ruling stands. > I mean, she might make the same finding again, if she hasn't changed > her mind in the interim. I seem to remember that the District Judge wrote a pretty strongly worded opinion. I doubt she's changed her mind. > > Either way, what is so powerful about the 9th circuit's appeals > > ruling in Bernstein was it's refutation of the "source code is for > > controlling a computer" idea. > > > > Judge Kaplan, for example, slipped into this trap. He obviously > > hadn't actually read Bernstein. > > Maybe he read _Bernstein_ and _Junger_ both and decided _Junger_ > was right. Bernstein tackles the same reasoning used in Junger head on and provides a detailed explaination for rejecting it. Junger doesn't mention the arguements used in Bernstein. If you read both and add nothing of your own, there is little way to conclude Junger is right. If you want to reach the same conclusion as Junger, you'd have to at least provide a counter arguement to Bernstein that isn't in Junger. > Maybe he read _Bernstein_ and said "Silly 9th Circuit, that's where > all those radical computer geeks live, isn't it?" :-) Maybe. You would think the 9th Circuit would be the most respected on the matter, since they clearly have the most litigation related to high tech, probably by a factor of 10. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 21:23:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05734 for dvd-discuss-outgoing; Thu, 16 Mar 2000 21:23:36 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05731 for ; Thu, 16 Mar 2000 21:23:35 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA16381 for dvd-discuss@eon.law.harvard.edu; Thu, 16 Mar 2000 19:34:10 -0800 Date: Thu, 16 Mar 2000 19:34:10 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Message-ID: <20000316193410.N13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000316191121.4580.qmail@web507.mail.yahoo.com> <000a01bf8fbf$47fdbcc0$e57945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000a01bf8fbf$47fdbcc0$e57945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Mar 16, 2000 at 09:17:09PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky writes: > > Because 1201(a)(2)(B) bans trafficking technology with little > > commercially significant purpose other than to circumvent. I'm > > providing three such commercially significant purposes. It's pretty > > straight forward. > > Taking a step back as I have, I guess a more pertinent response would be to > your 3 points. Yes, the DVD content creators could use it to test their > output; and the copyright holders could use it for archival purposes (which > raises a question, does DeCSS allow a DVD holder to make useful archival > copies? sorry, not as up on my DeCSS-lore as I'd like); Speculatively -- "yes, and they would be very expensive". Or, perhaps, "yes, and they would not be directly playable": couldn't you use DeCSS to back up at least MPEGs onto sequential magnetic tape? > and yes, consumers > could use DeCSS to defeal access control where there is no more valid > copyright. I'll mention this below: > The difficulties I see, however, are that the first two non-infringing uses > are hypothetical, which is I guess Seth's de minimis claim. Have these > situations happened? No. Will they happen? I feel the chances are, for > purposes of argumetation, not measureable. Yes, not just hypothetical, but also almost inconceivably unlikely. The de minimis part is that they are so unlikely that an irritated court could say that they were invented as mere hypothetical rationalizations for DeCSS. In the case of a studio losing its master tapes, I'd be inclined to agree with that court. :-) > Your third point, since it is also a hypothetical non-infringing use, would > probably carry more powerfully if you pulled out the implicit statement > within it to criticize the law itself (which you have done elsewhere): that > the law makes no provision for works whose copyrights have expired; > therefore, conflict between the term of copyright and the term of protection > granted by access control. This means that there will be an obvious commercially significant non-infringing use of DeCSS in about a century, when the copyrights on DVDs produced recently begin to expire. No natural person connected with this case in any way is likely to _live to see that_, but it will be such a use. When copyrights on DVDs expire, the CP schemes with which they are encoded will not protect any rights of any copyright holders, although even that may not be good enough, since CSS _in general_ could still be helping to enforce some legal rights of some copyright holders, and DeCSS could still be used to circumvent it. Of course, it's ridiculous to think that CSS will still be in use for new media when these copyrights start to expire. The term of copyright is now so long that I wouldn't be comfortable predicting that motion pictures, movie studios, personal computers, physical recording media, or the Federal government will still be around by the time new copyrights expire. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 21:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07972 for dvd-discuss-outgoing; Thu, 16 Mar 2000 21:32:59 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA07969 for ; Thu, 16 Mar 2000 21:32:58 -0500 Received: from bugbug (max01-10.suba.com [206.69.121.202]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA27397 for ; Thu, 16 Mar 2000 21:46:21 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Commercially Significant Uses Date: Thu, 16 Mar 2000 21:45:27 -0600 Message-ID: <000c01bf8fc3$3baab0a0$e57945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000316193410.N13379@cty-alum.org> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth intoned: (I am getting tired of all the "writing" going on here) > > sparky writes: > > > Your third point, since it is also a hypothetical > non-infringing use, would > > probably carry more powerfully if you pulled out the implicit statement > > within it to criticize the law itself (which you have done > elsewhere): that > > the law makes no provision for works whose copyrights have expired; > > therefore, conflict between the term of copyright and the term > of protection > > granted by access control. > > This means that there will be an obvious commercially significant > non-infringing use of DeCSS in about a century, when the copyrights on > DVDs produced recently begin to expire. No natural person connected > with this case in any way is likely to _live to see that_, but it will > be such a use. Good point. Death before DeCSS (alas). :) sparky > > -- > Seth David Schoen | And do not say, I will > study when I > Temp. http://www.loyalty.org/~schoen/ | have leisure; for > perhaps you will > down: http://www.loyalty.org/ (CAF) | not have leisure. -- > Pirke Avot 2:5 > From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 21:57:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09862 for dvd-discuss-outgoing; Thu, 16 Mar 2000 21:57:10 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA09859 for ; Thu, 16 Mar 2000 21:57:09 -0500 Received: (qmail 6035 invoked by uid 60001); 17 Mar 2000 04:10:34 -0000 Message-ID: <20000317041034.6034.qmail@web505.mail.yahoo.com> Received: from [24.28.154.65] by web505.mail.yahoo.com; Thu, 16 Mar 2000 20:10:34 PST Date: Thu, 16 Mar 2000 20:10:34 -0800 (PST) From: Bryan Taylor Subject: RE: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- sparky wrote: > The difficulties I see, however, are that the first two > non-infringing uses are hypothetical, which is I guess Seth's de minimis > claim. Have these situations happened? No. Will they happen? I feel the > chances are, for purposes of argumetation, not measureable. Let me alter my second point a little. I agree, recovery of the originals when they are "lost" etc... is probably too far fetched. However, this file type conversion might be done by somebody else besides the person in possession of the originals, especially in a corporate setting, or by a customer after suitable permission is obtained. Suppose you make a movie and put it out on DVD. I call you up and say " I'd like to use 20 seconds of film footage for a review". You say "I approve, just don't ask me to do anything, I'm busy and lazy". Would DeCSS be a convenient tool in this case. Absolutely. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 22:06:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10685 for dvd-discuss-outgoing; Thu, 16 Mar 2000 22:06:02 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA10682 for ; Thu, 16 Mar 2000 22:06:01 -0500 Received: (qmail 24020 invoked from network); 17 Mar 2000 04:15:45 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 17 Mar 2000 04:15:45 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA30677; Thu, 16 Mar 2000 20:19:47 -0800 Date: Thu, 16 Mar 2000 20:19:47 -0800 Message-Id: <200003170419.UAA30677@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Who give us the right to view DVD movie? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns wrote: >> I wish that people here were working on more first amendment claims, in >> order to try to get a precedent equivalent to _Bernstein_ in New York. >> (Otherwise, other programs released in different circumstances will be >> subject to attack de novo, because a court can say "The outcome in >> _Universal v. Reimerdes_ was very favorable to the defendants, but >> because it was based on the specific circumstances of that case, it is >> not really relevant here" and proceed to find that some _other_ program >> violates the DMCA.) > >The problem here is that this realm seems to be one that the constitution >hasn't really clearly set ground rules for. The DMCA is riding around in >a lot of legal grey areas about the rights of copyright holders versus the >rights of media consumers. If we try to take up the first amendment >attack, we may find that the interpretations end up actually enforcing >greater limitations than we've had previously. > >Really I think that the approach that needs to be taken with the >DMCA is to get it out of the legal books. Or at the very least, make an >effort to ammend that law to clarify a lot of the vagueries that exist in >it right now. It is reasonable to want to protect a copyright holder's >abilities to: > >1) restrict access to their work No. After public publication (gee isn't that special) you can dictate who may access. I have evbery right to take a DVD and give it to a friend to access or to visit his home and access. >2) restrict copying of their work Yes. If you prevent the latter you've done as much as seems right to me. (I will admit I appreciate the attitude of early crackers breaking Unix boxes for the sake of learning given they were screwed over living the suburbs away from any form of advanced civilization). >What isn't clear is how the procuedure of authorization from a copyright >holder to a media consumer proceeds. There also isn't any clear >limitation on what a copyright holder can restrict (fair use rights, >etc). Rather than leaving it up to judicial interpretation, this should >be fixed at the source. Let's figure out how to win this case, and then >devote our efforts to preventing this through legislative means. #1 Separation of powers: Buyer vs Distributor vs Vendor. With a preamble stating that within a transaction anyone shall be allowed to play one of those roles. Within a complex translation each step shall be reduced to a simple transaction, especially in the case of Vendor ---> Distributor ---> Wholesale ---> Retailer ---> Buyer. #2 Related to this there should also be a heirarchy of Rights similar to People --> State --> Federal only instead applied to Employee --> Employer --> Company. Incidentally, I'm quite sure UCITA, DMCA, and the next bombshell to come out (who knows what that'll be, maybe banning of unions) will form a triangle that creates the opposite dynamics of the relationships in #1 and #2. >---Steve > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 22:12:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11757 for dvd-discuss-outgoing; Thu, 16 Mar 2000 22:12:40 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA11754 for ; Thu, 16 Mar 2000 22:12:39 -0500 Received: (qmail 24531 invoked from network); 17 Mar 2000 04:22:23 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 17 Mar 2000 04:22:23 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA31150; Thu, 16 Mar 2000 20:26:31 -0800 Date: Thu, 16 Mar 2000 20:26:31 -0800 Message-Id: <200003170426.UAA31150@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Commercially Significant Uses Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >From ??? Fri Feb 19 09: 25 >Received: (qmail 23624 invoked from network); 17 Mar 2000 04 >Received: from eon.law.harvard.edu (mail@140.247.200.71) >by mail.filetron.com with SMTP; 17 Mar 2000 04: 07 >Received: from localhost (mail@localhost) >by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA09879;: >Thu, 16 Mar 2000 21: 57 >Received: by eon.law.harvard.edu (bulk_mailer v1.5); Fri, 17 Mar 2000 02 >Received: (from majordomo@localhost) >by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09862: >for dvd-discuss-outgoing; Thu, 16 Mar 2000 21: 57 >Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) >by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA09859: >for ; Thu, 16 Mar 2000 21: 57 >Received: (qmail 6035 invoked by uid 60001); 17 Mar 2000 04 >Message-ID: <20000317041034.6034.qmail@web505.mail.yahoo.com> >Received: from [24.28.154.65] by web505.mail.yahoo.com; Thu, 16 Mar 2000 20 >Date: Thu, 16 Mar 2000 20 >MIME-Version: 1.0 >Content-Type: text/plain; charset=us-ascii >Sender: owner-dvd-discuss@eon.law.harvard.edu >Reply-To: dvd-discuss@eon.law.harvard.edu > >--- sparky wrote: > >> The difficulties I see, however, are that the first two >> non-infringing uses are hypothetical, which is I guess Seth's de >minimis > claim. Have these situations happened? No. Will they happen? >I feel the > chances are, for purposes of argumetation, not >measureable. > >Let me alter my second point a little. I agree, recovery of the >originals when they are "lost" etc... is probably too far fetched. > >However, this file type conversion might be done by somebody else >besides the person in possession of the originals, especially in a >corporate setting, or by a customer after suitable permission is >obtained. > >Suppose you make a movie and put it out on DVD. I call you up and say " >I'd like to use 20 seconds of film footage for a review". You say "I >approve, just don't ask me to do anything, I'm busy and lazy". Would >DeCSS be a convenient tool in this case. Absolutely. > I'm busy and lazy. That would do it. Especially when you get millions of calls like that cuz you're a lazy genius who just cured AIDS and made a video about it. Rares PS: Refrain from words like Absolutely until after the case is won/lost. :) >__________________________________________________ >Do You Yahoo!? >Talk to your friends online with Yahoo! Messenger. >http://im.yahoo.com Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 22:27:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13229 for dvd-discuss-outgoing; Thu, 16 Mar 2000 22:27:36 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA13226 for ; Thu, 16 Mar 2000 22:27:35 -0500 Received: (qmail 4264 invoked by uid 60001); 17 Mar 2000 04:40:57 -0000 Message-ID: <20000317044057.4263.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Thu, 16 Mar 2000 20:40:57 PST Date: Thu, 16 Mar 2000 20:40:57 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > In the case of a studio losing its master tapes, I'd be inclined to > agree with that court. :-) "A studio" could be some guy in his basement. I'm not talking about the MPAA members here. Anybody with a video camera, authoring software, and a little cash can make a DVD-video. A corporate training group might make a DVD instructional video, say. Suppose then, that someone else in the same company wants to use a clip from it. DeCSS would be helpful to them. > This means that there will be an obvious commercially significant > non-infringing use of DeCSS in about a century, when the copyrights > on DVDs produced recently begin to expire. There are lot's of other reasons why movies or _pieces_ of movies would be in the public domain. For example, the Zapruter film is public domain and part of it is shown in the movie "JFK". Using DeCSS in a process to extract this would not be circumvention, since this isn't a work protected under title 17. Another example: I might want to grab the FBI notice out of a purchased movie to add to my indy-film DVD. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 22:37:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA14726 for dvd-discuss-outgoing; Thu, 16 Mar 2000 22:37:22 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA14714 for ; Thu, 16 Mar 2000 22:37:21 -0500 Received: (qmail 25674 invoked from network); 17 Mar 2000 04:47:04 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 17 Mar 2000 04:47:04 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA32619; Thu, 16 Mar 2000 20:51:12 -0800 Date: Thu, 16 Mar 2000 20:51:12 -0800 Message-Id: <200003170451.UAA32619@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: >Interesting... That would seem to imply that DVDMotion does CSS >encryption. But that goes against what we thought so far: that licensed >players will refuse to play CSS-encrypted content without keys stored in a >special sector on a real DVD. If DVDMotion could create CSS-encrypted >content that XingDVD would play from a hard drive, DeCSS would never be >necessary; you'd just copy the key-sector onto your hard drive and play! > >Again, these are all educated guesses; please try to disprove them! I'm guessing this works only if used with a megabuck DVD writer that does in fact write to the CSS sectors. Writing to DVD-RAM discs is pointless because those are just meant as high capacity storage. DVDMotion can do all it wants if the writer isn't up to the task... no go. >Eric Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 16 22:43:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15503 for dvd-discuss-outgoing; Thu, 16 Mar 2000 22:43:07 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA15500 for ; Thu, 16 Mar 2000 22:43:06 -0500 Received: (qmail 25937 invoked from network); 17 Mar 2000 04:52:50 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 17 Mar 2000 04:52:50 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id UAA00173; Thu, 16 Mar 2000 20:56:58 -0800 Date: Thu, 16 Mar 2000 20:56:58 -0800 Message-Id: <200003170456.UAA00173@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >--- Eric Seppanen wrote: > >> Both of these two assume CSS encryption is performed by the DVD >> authoring tool (i.e. DVDMotion). Some of the information I've seen >(on >> technicolor.com for example) implies that CSS encryption is performed >> only during creation of the glass master. If true, both (1) and (2) >don't >> work. Look at page 10 of this document: >> >> http://www.technicolor.com/services/DVD2000v1.pdf > >Also look at page 14 of the document: > >"- CSS copy-protection titles (DVD-Video) - The CSS encryption process >is conducted during the data transfer from DLT [Digital Linear Tape] to >glass master, therefore the DLT and disc contain different data >- CSS-licensed workstations that can encrypt the DLT for direct >comparison to disc or vice-versa are expected to be available in late >1999" > >I think this last bullet refers to functionality found in recent >high-end DVD authoring software. Does anybody understand this better? If it were a physical process you wouldn't need a workstation just a device with something to plug into and possibly a server computer that just controlled physical aspects of its operation (chemicals, temp, etc.). Rares > >__________________________________________________ >Do You Yahoo!? >Talk to your friends online with Yahoo! Messenger. >http://im.yahoo.com Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 00:32:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA32566 for dvd-discuss-outgoing; Fri, 17 Mar 2000 00:32:01 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA32563 for ; Fri, 17 Mar 2000 00:31:59 -0500 Received: from [38.32.10.12] (helo=ip12.bedford2.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12VqVg-0003qa-00; Fri, 17 Mar 2000 01:45:25 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Date: Fri, 17 Mar 2000 06:43:31 GMT Message-ID: <38d7ca90.57735679@mail.tiac.net> References: <20000317044057.4263.qmail@web504.mail.yahoo.com> In-Reply-To: <20000317044057.4263.qmail@web504.mail.yahoo.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id AAA32564 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 16 Mar 2000 20:40:57 -0800 (PST), Bryan Taylor wrote: >A corporate training group might make a DVD instructional video, say. >Suppose then, that someone else in the same company wants to use a clip >from it. DeCSS would be helpful to them. Absolutely. Although it's likely that title wouldn't use CSS. >> This means that there will be an obvious commercially significant >> non-infringing use of DeCSS in about a century, when the copyrights >> on DVDs produced recently begin to expire. And perhaps widespread distribution now is justifiable, given the need to ensure that a copy will always be available somewhere. (This, in the absence of an official DeCSS utility that might be provided to libraries and museums, etc.) >There are lot's of other reasons why movies or _pieces_ of movies would >be in the public domain. For example, the Zapruter film is public >domain and part of it is shown in the movie "JFK". Using DeCSS in a >process to extract this would not be circumvention, since this isn't a >work protected under title 17. Another example: I might want to grab >the FBI notice out of a purchased movie to add to my indy-film DVD. Is Zapruder PD? Didn't the family sell the film and rights to the [Smithsonian or..?] I expect Oliver Stone had to pay big bucks for those shots. Along these lines I was reading TIME INCORPORATED vs. BERNARD GEIS ASSOCIATES where an author took photos of 35mm copies of frames from an 8mm copy of the Zapruder film and then had an artist make sketches of the frames for his book on the assassination. He was allowed fair use because his book didn't pose a commercial threat to Life magazine. *come to think of it, wasn't the Zapruder clip also used in the documentary "Hearts and Minds" back in the 70s? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 10:50:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA27759 for dvd-discuss-outgoing; Fri, 17 Mar 2000 10:50:32 -0500 Received: from europe.std.com (europe.std.com [199.172.62.20]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA27756 for ; Fri, 17 Mar 2000 10:50:31 -0500 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by europe.std.com (8.9.3/8.9.3) with ESMTP id MAA09846 for ; Fri, 17 Mar 2000 12:03:55 -0500 (EST) Received: from [24.218.56.92] (h000a2792745c.ne.mediaone.net [24.218.56.92]) by world.std.com (8.9.3/8.9.3) with ESMTP id LAA12953 for ; Fri, 17 Mar 2000 11:59:08 -0500 (EST) Mime-Version: 1.0 Message-Id: Date: Fri, 17 Mar 2000 11:58:27 -0500 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Sony PS2 DVD zone oops Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://dailynews.yahoo.com/h/nm/20000317/tc/tech_sony_3.html Sony Embarrassed by Another PlayStation2 Flaw By Yuka Obayashi ... Sony's game making unit Sony Computer Entertainment (SCE) said it had found users of PS2, launched two weeks ago in Japan amid huge publicity and frenzied demand, could manipulate it to watch digital video disk (DVD) software sold overseas. That is in breach of an agreement among DVD player makers worldwide that stipulates machines can only play domestically sold disks equipped with disenabling codes. ... From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 11:22:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA32377 for dvd-discuss-outgoing; Fri, 17 Mar 2000 11:22:08 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA32374 for ; Fri, 17 Mar 2000 11:22:06 -0500 Received: (qmail 18991 invoked by uid 60001); 17 Mar 2000 17:35:24 -0000 Message-ID: <20000317173524.18990.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Fri, 17 Mar 2000 09:35:24 PST Date: Fri, 17 Mar 2000 09:35:24 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ron Gustavson wrote: > On Thu, 16 Mar 2000 20:40:57 -0800 (PST), Bryan Taylor wrote: > > >A corporate training group might make a DVD instructional video, > >say. Suppose then, that someone else in the same company wants to > >use a clip from it. DeCSS would be helpful to them. > > Absolutely. Although it's likely that title wouldn't use CSS. Why not? Lot's of consultant groups market their training to the outside world. It's evidently free at one DVD manufacturer (Technicolor) to add CSS if you are printing DVD's, so there's no added cost. > Is Zapruder PD? Didn't the family sell the film and rights to the > [Smithsonian or..?] I expect Oliver Stone had to pay big bucks for > those shots. > Along these lines I was reading TIME INCORPORATED > vs. BERNARD GEIS ASSOCIATES where an author took photos > of 35mm copies of frames from an 8mm copy of the Zapruder film and > then had an artist make sketches of the frames for his book on the > assassination. He was allowed fair use because his book didn't pose a > commercial threat to Life magazine. Thanks for providing the reference to the case, I had been trying to find it. After reading the case, I think I had my facts slightly wrong. It appears the Zapruder film is NOT public domain. TIME INC. V. BERNARD GEIS ASSOCS. 293 F. Supp. 130 (S.D. NY 1968) "Life has a valid copyright in the Zapruder film." "The so-called 'sketches' in the Book as listed above are in fact copies, as is readily apparent by comparison with the Zapruder frames involved, copies of all of which have been submitted. The 'artist' has simply copied the original in charcoal with no creativity or originality whatever. " "In determining the issue of fair use, the balance seems to be in favor of defendants." Oddly enough, it appears that I am not alone in mis-concluding that Geis declared the Zapruder film public domain: IOWA STATE UNIV. RESEARCH FOUND. V. ABC 621 F.2d 57 (2d Cir. 1980) "Geis involved an author's unauthorized use of the Zapruder film of the Kennedy assassination. In this almost unique instance, it is at least arguable that the informational value of that film cannot be separated from the photographer's expression, see 1 Nimmer on Copyright § 1.10(B), at 1-83, thereby indicating that both should be in the public domain. " __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 12:51:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16138 for dvd-discuss-outgoing; Fri, 17 Mar 2000 12:51:14 -0500 Received: from hotmail.com (law2-f93.hotmail.com [216.32.181.93]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA16135 for ; Fri, 17 Mar 2000 12:51:12 -0500 Received: (qmail 19569 invoked by uid 0); 17 Mar 2000 19:04:09 -0000 Message-ID: <20000317190409.19568.qmail@hotmail.com> Received: from 206.245.149.195 by www.hotmail.com with HTTP; Fri, 17 Mar 2000 11:04:09 PST X-Originating-IP: [206.245.149.195] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Date: Fri, 17 Mar 2000 14:04:09 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Jeff Waller > > > > Even the authorized devices must circumvent the > > > > access protection mechanism to obtain access. It > > > > is just that their circumvention has been authorized > > > > by (someone) while DeCSS performs unauthorized > > > > circumvention. > > > > > > > > Where this distinction leads in a legal sense, I > > > > don't know. [ ...] > > > > > > there you go. > > > > Actually after reading Ian's msg I have a clearer > > idea of where that leaves us: attempting to determine > > the point at which access becomes authorized. Since > > it is authorized explicitly neither at point of DVD > > sale nor at point of player sale, it must be -implicitly- > > authorized at some point ... and the only point at > > which that makes sense is at point of sale of the DVD > > itself. > >Well from what I've read that's arguable, certainly >MPAA will not argue for authorization at point of sale or >any time prior to actual decrypting by licensed players. > >-Jeff > > I just re-read Kaplan's opinion for the preliminary injunction. I think it gives us a good indication where/when/how Judge Kaplan believes authorization to take place. And it is not good news: 2. DMCA Violation [. . .] "Here, it is perfectly clear that CSS is a technological measure that effectively controls access to plaintiffs' copyrighted movies because it requires the application of information or a process, with the authority of the copyright owner, to gain access to those works. Indeed, defendants conceded in their memorandum that one cannot in the ordinary course gain access to the copyrighted works on plaintiffs' DVDs without a "player key'' issued by the DVDCCA that permits unscrambling the contents of the disks. It is undisputed also that DeCSS defeats CSS and decrypts copyrighted works without the authority of the copyright owners." "Second, even if DeCSS were intended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key'' would "circumvent a technological measure'' that effectively controls access to a copyrighted work and violate the statute in any case." This indicates that, in Kaplan's view, authorization is "granted" through the use of a licensed CSS "player key." Thus, one determines whether a particular access is "with[] authorization of the copyright holder" by reference to the use of a licensed player key: if one is using a "licensed CSS player key," one is accessing with authorization and there is no circumvention. However if one is not using a "licensed CSS player key," then there is no authorization and access is circumvention. This does not bode well for an "authorization at time of sale to DVD user" argument. By the way, there is a pretrial conference before Kaplan in the case today. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 12:56:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17988 for dvd-discuss-outgoing; Fri, 17 Mar 2000 12:56:39 -0500 Received: from hotmail.com (law2-f54.hotmail.com [216.32.181.54]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA17985 for ; Fri, 17 Mar 2000 12:56:38 -0500 Received: (qmail 77512 invoked by uid 0); 17 Mar 2000 19:09:34 -0000 Message-ID: <20000317190934.77511.qmail@hotmail.com> Received: from 206.245.149.195 by www.hotmail.com with HTTP; Fri, 17 Mar 2000 11:09:34 PST X-Originating-IP: [206.245.149.195] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercially Significant Uses Date: Fri, 17 Mar 2000 14:09:34 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think the court is likely to view "commercially significant" as a concept involving a market. In other words, is there a valuable market for the circumventing technology, other than to circumvent. This is not based on any case law, but rather a general sense of how the law works. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 14:00:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31129 for dvd-discuss-outgoing; Fri, 17 Mar 2000 14:00:21 -0500 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31125 for ; Fri, 17 Mar 2000 14:00:17 -0500 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA00931 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 13:17:00 -0700 Date: Fri, 17 Mar 2000 13:16:59 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317131658.A831@localhost> References: <20000317190409.19568.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000317190409.19568.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 17, 2000 at 02:04:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 02:04:09PM -0500, Joshua Daub wrote: [ ... ] > I just re-read Kaplan's opinion for the preliminary injunction. I think it > gives us a good indication where/when/how Judge Kaplan believes > authorization to take place. And it is not good news: > > 2. DMCA Violation > > [. . .] > > "Here, it is perfectly clear that CSS is a technological measure that > effectively controls access to plaintiffs' copyrighted movies because it > requires the application of information or a process, with the authority of > the copyright owner, to gain access to those works. Indeed, defendants > conceded in their memorandum that one cannot in the ordinary course gain > access to the copyrighted works on plaintiffs' DVDs without a "player key'' > issued by the DVDCCA that permits unscrambling the contents of the disks. It > is undisputed also that DeCSS defeats CSS and decrypts copyrighted works > without the authority of the copyright owners." > > "Second, even if DeCSS were intended and usable solely to permit the > playing, and not the copying, of DVDs on Linux machines, the playing without > a licensed CSS "player key'' would "circumvent a technological measure'' > that effectively controls access to a copyrighted work and violate the > statute in any case." > > > This indicates that, in Kaplan's view, authorization is "granted" through > the use of a licensed CSS "player key." Thus, one determines whether a > particular access is "with[] authorization of the copyright holder" by > reference to the use of a licensed player key: if one is using a "licensed > CSS player key," one is accessing with authorization and there is no > circumvention. However if one is not using a "licensed CSS player key," > then there is no authorization and access is circumvention. > > This does not bode well for an "authorization at time of sale to DVD user" > argument. > > By the way, there is a pretrial conference before Kaplan in the case today. There are licenses that must be signed by all CSS-licensees. Those licenses are not on the web, although the process for getting the licenses to use CSS are outlined at: . I've just made an effort to get one End-User License Agreement (EULA) from a company that manufactures CSS-enabled authoring systems, but haven't heard back yet. If one believes the "player key" == "with authority" theory, then it seems like all of the contracts involved will have to address the issue of transferring authority. In the case of the EULA, this would be peculiar because the systems that can do CSS at the authoring stage are expensive. No one is going to buy one of these things to do a single DVD video. Moreover it likely to be a production studio that buys these things. If they rent their equipment, then the copyright holder will not be a signatory to the EULA. One more layer of contract? There are going to be several links between the owner of the player key and any of the copyright holders. I wonder if one is weak. Doesn't the multiplicity of coypright holders compared to the 408/409 valid player keys in the entire world say there has to be a uniform system of transferring authority? Delegation anyone? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 14:05:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31884 for dvd-discuss-outgoing; Fri, 17 Mar 2000 14:05:30 -0500 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31837 for ; Fri, 17 Mar 2000 14:05:28 -0500 Received: from [38.32.78.218] (helo=ip218.bedford8.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12W3Cw-0007bi-00; Fri, 17 Mar 2000 15:18:55 -0500 From: rongus@tiac.net (Ron Gustavson) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Date: Fri, 17 Mar 2000 20:17:33 GMT Message-ID: <38d3912b.17340607@mail.tiac.net> References: <20000317190409.19568.qmail@hotmail.com> In-Reply-To: <20000317190409.19568.qmail@hotmail.com> X-Mailer: Forte Agent 1.0/32.390 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA31882 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 17 Mar 2000 14:04:09 EST, "Joshua Daub" wrote: >This indicates that, in Kaplan's view, authorization is "granted" through >the use of a licensed CSS "player key." Thus, one determines whether a >particular access is "with[] authorization of the copyright holder" by >reference to the use of a licensed player key: if one is using a "licensed >CSS player key," one is accessing with authorization and there is no >circumvention. However if one is not using a "licensed CSS player key," >then there is no authorization and access is circumvention. > >This does not bode well for an "authorization at time of sale to DVD user" >argument. Does this mean that ordering CSS protection for a DVD title involves the copyright holder in some industry cartel that he may not wish to join? This bears on Bryan's question--what if the corporate or other user wants to use CSS, but not be limited to authorized players? ps. I also noticed in the hearing transcript the following misleading exchange: "THE COURT: Is the content of a DVD simply a data file? MR. GOLD: Yes, your Honor. THE COURT: Okay. " __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 14:14:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03778 for dvd-discuss-outgoing; Fri, 17 Mar 2000 14:14:13 -0500 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03680 for ; Fri, 17 Mar 2000 14:14:03 -0500 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA00941 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 13:30:49 -0700 Date: Fri, 17 Mar 2000 13:30:48 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317133047.B831@localhost> References: <20000317190409.19568.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000317190409.19568.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 17, 2000 at 02:04:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 02:04:09PM -0500, Joshua Daub wrote: [ ... ] > I just re-read Kaplan's opinion for the preliminary injunction. I think it > gives us a good indication where/when/how Judge Kaplan believes > authorization to take place. And it is not good news: > > 2. DMCA Violation > > [. . .] > > "Here, it is perfectly clear that CSS is a technological measure that > effectively controls access to plaintiffs' copyrighted movies because it > requires the application of information or a process, with the authority of > the copyright owner, to gain access to those works. Indeed, defendants > conceded in their memorandum that one cannot in the ordinary course gain > access to the copyrighted works on plaintiffs' DVDs without a "player key'' > issued by the DVDCCA that permits unscrambling the contents of the disks. It > is undisputed also that DeCSS defeats CSS and decrypts copyrighted works > without the authority of the copyright owners." > > "Second, even if DeCSS were intended and usable solely to permit the > playing, and not the copying, of DVDs on Linux machines, the playing without > a licensed CSS "player key'' would "circumvent a technological measure'' > that effectively controls access to a copyrighted work and violate the > statute in any case." > > > This indicates that, in Kaplan's view, authorization is "granted" through > the use of a licensed CSS "player key." Thus, one determines whether a > particular access is "with[] authorization of the copyright holder" by > reference to the use of a licensed player key: if one is using a "licensed > CSS player key," one is accessing with authorization and there is no > circumvention. However if one is not using a "licensed CSS player key," > then there is no authorization and access is circumvention. > > This does not bode well for an "authorization at time of sale to DVD user" > argument. There are three kinds of keys involved in the CSS system. Picking the player key is picking the key "farthest" from the "protected" content. 1. Player key -- resides in the DVD decoder (either hardware or software) Player keys may unlock disk keys if the player keys was a valid key when the disk key was generated (I'm making a few interpolations here about when various keys are valid, but the function of the player key is unambiguously correct, see Frank Stevenson's white paper: ). 2. Disk key --- resides on the disk. It is used to unlock title keys. 3. Title key --- resides at the head of "protected" data. Is used to "unlock" that data. See Stevenson's paper. My point is that player keys are not the only thing floating around. If the contracts are defective, perhaps we can argue that *no one* has authority to use the player key to "unlock" (indirectly) the movies? Would this qualify as proof of a vague and/or delegating law? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 14:36:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08330 for dvd-discuss-outgoing; Fri, 17 Mar 2000 14:36:18 -0500 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA08259 for ; Fri, 17 Mar 2000 14:36:13 -0500 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA01037 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 13:52:57 -0700 Date: Fri, 17 Mar 2000 13:52:55 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317135254.A1016@localhost> References: <20000317190409.19568.qmail@hotmail.com> <38d3912b.17340607@mail.tiac.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38d3912b.17340607@mail.tiac.net>; from rongus@tiac.net on Fri, Mar 17, 2000 at 08:17:33PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 08:17:33PM +0000, Ron Gustavson wrote: > This bears on Bryan's question--what if the corporate or other user wants to > use CSS, but not be limited to authorized players? What if the copyright holder wanted to _exclude_ "general public" authorized players as a security measure? Unpublished documents are still copyrighed, and CSS (well, not as a technical matter, as a legal one) might protect those private doc's. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 14:51:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10501 for dvd-discuss-outgoing; Fri, 17 Mar 2000 14:51:53 -0500 Received: from hotmail.com (law2-f109.hotmail.com [216.32.181.109]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA10498 for ; Fri, 17 Mar 2000 14:51:51 -0500 Received: (qmail 34601 invoked by uid 0); 17 Mar 2000 21:04:48 -0000 Message-ID: <20000317210448.34600.qmail@hotmail.com> Received: from 206.245.149.195 by www.hotmail.com with HTTP; Fri, 17 Mar 2000 13:04:48 PST X-Originating-IP: [206.245.149.195] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Date: Fri, 17 Mar 2000 16:04:48 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Paul Fenimore >There are three kinds of keys involved in the CSS system. Picking the >player key is picking the key "farthest" from the "protected" content. > >1. Player key -- resides in the DVD decoder (either hardware or software) >Player keys may unlock disk keys if the player keys was a valid key when >the disk key was generated (I'm making a few interpolations here about >when various keys are valid, but the function of the player key is >unambiguously correct, see Frank Stevenson's white paper: >). >2. Disk key --- resides on the disk. It is used to unlock title keys. >3. Title key --- resides at the head of "protected" data. Is used to >"unlock" that data. See Stevenson's paper. > >My point is that player keys are not the only thing floating around. >If the contracts are defective, perhaps we can argue that *no one* has >authority to use the player key to "unlock" (indirectly) the movies? >Would this qualify as proof of a vague and/or delegating law? > I think assuming that the contracts are defective is an incredible leap. Moreover, the court need not find an express chain of authorization from copyright owner to end user; the court may rely on a theory of implied authority. However, if the court were to find that the average person has no way of knowing whether it is violating the law, one may argue that the law is vague. I would just like to note that, given the facts of this case, I would not want to argue this in front of a judge. I think Kaplan may have dismissed this argument already, or at the least, given the defense a good indication of how he would react. My prediction: THE DEFENSE: Your honor, the average user has no way of knowing whether the appropriate party has authorized the use of the player key used on a particular DVD/Player. Therefore, the average user of a DVD has no way of knowing whether the playing of a DVD on even a storebought player violates the Act. THE COURT: Defense attorney, do you have any evidence that DeCSS was authorized by ANYONE? Is there any question that DeCSS is NOT an authorized player key? In fact, didn't you admit that DeCSS allows one to view a DVD without an authorized player key? DEFENSE: Well, um, your honor. THE COURT: Next issue. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:15:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14438 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:15:46 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA14435 for ; Fri, 17 Mar 2000 15:15:45 -0500 Received: (qmail 15162 invoked by uid 60001); 17 Mar 2000 21:28:24 -0000 Message-ID: <20000317212824.15161.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Fri, 17 Mar 2000 13:28:24 PST Date: Fri, 17 Mar 2000 13:28:24 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Circumvention or Access? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > This does not bode well for an "authorization at time of sale to DVD > user" argument. Actually, it does, becauase Kaplan has his facts slightly, but critically wrong. The "player key" Kaplan refers to only protects the "title key" which comes on the DVD. The title key, and NOT the player key is what protects the actual movie. If authorizaton is the physical delivery of the key, then this occurs at sale time. The title key must itself be licenced, and this occurs through the purchase of the DVD. Authority to use the title key can't come via the DVD CCA, since they are not the copyright holder. Thus when the DVD copyright notice says "for home viewing only" or similar, the only way to interpret the situation is that this is an authority grant to use the title key. Otherwise nothing grants use of the title key. Moreover, licencing of the title key cannot be contingent on licencing of the player key, since this tying is exactly like "block licencing" disallowed by US v Paramount. The title key is part of the program used to control access to the the video content. It is properly the target of reverse engineering, because it is not the work itself, but part of a computer program. DeCSS breaks the encryption on the title key, then uses this licenced key to exchange the information in the movie data files. Here's an analogy: the car dealer delivers your car but your car key is locked inside in the glove compartment. The dealer refers you to an 'authorized' locksmith who wants extra money to get in. You would be within your rights to ignore this offer and provide your own means for getting in, such as an unathorized lock-pick made by reverse engineering of the car and/or authorized locksmith's tools. Note also that the title key itself is not a copyrightable work, since it involves no expression. Its short bit sequence is the unique way to represent its functional nature. It should be regarded as an idea/fact. Indeed, it is just a numeric constant. Thus the player key by itself does not protect a copyrighted work and 1201 does not apply to accessing the title key alone, even aside from the 1201(f) exception. In summary: if Kaplan's authorization model is the licenced transfer of the key itself, then this is good news, because the title key comes on the DVD. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:21:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15236 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:21:09 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA15233 for ; Fri, 17 Mar 2000 15:21:04 -0500 Received: from sympatico.ca ([209.226.230.157]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000317213356.WZFT13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Fri, 17 Mar 2000 16:33:56 -0500 Message-ID: <38D2A6A9.69EBA53A@sympatico.ca> Date: Fri, 17 Mar 2000 16:42:01 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <20000317210448.34600.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > My prediction: > > THE DEFENSE: Your honor, the average user has no way of knowing whether the > appropriate party has authorized the use of the player key used on a > particular DVD/Player. Therefore, the average user of a DVD has no way of > knowing whether the playing of a DVD on even a storebought player violates > the Act. > > THE COURT: Defense attorney, do you have any evidence that DeCSS was > authorized by ANYONE? Is there any question that DeCSS is NOT an authorized > player key? In fact, didn't you admit that DeCSS allows one to view a DVD > without an authorized player key? THE DEFENSE: Your honour, the prohibition is not against unauthorized devices that decrypt copyrighted works, but against use of a device to decrypt copyrighted works without authorization. There is a subtle, but important difference. DeCSS need not itself be authorized, only the act of decrypting with that device. It is the -act- of decrypting that is under review in determining whether circumvention has taken place, not the device itself. (cont'd) Since the court is entitled to infer a regime of implied authorization, a bona fide purchaser for value of a retail DVD has such implied authorization, and therefore has not circumvented, regardless of whether the tool used was licensed or not. (cont'd) The statutory prohibition in 1201(a)(2) was clearly intended to apply to devices that enabled -evasion- of the purchase price. This is clearly distinguishable from the present device, which can only possibly be used -after- having paid the purchase price. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:24:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15798 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:24:59 -0500 Received: from dial118.roadrunner.com (dial118.cybermesa.com [209.12.75.118]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA15795 for ; Fri, 17 Mar 2000 15:24:57 -0500 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id OAA01257 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 14:41:44 -0700 Date: Fri, 17 Mar 2000 14:41:42 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317144141.A1151@localhost> References: <20000317190409.19568.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000317190409.19568.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 17, 2000 at 02:04:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 02:04:09PM -0500, Joshua Daub wrote: [ ... ] > I just re-read Kaplan's opinion for the preliminary injunction. I think it > gives us a good indication where/when/how Judge Kaplan believes > authorization to take place. And it is not good news: > > 2. DMCA Violation > > [. . .] > > "Here, it is perfectly clear that CSS is a technological measure that > effectively controls access to plaintiffs' copyrighted movies because it > requires the application of information or a process, with the authority of > the copyright owner, to gain access to those works. Indeed, defendants > conceded in their memorandum that one cannot in the ordinary course gain > access to the copyrighted works on plaintiffs' DVDs without a "player key'' > issued by the DVDCCA that permits unscrambling the contents of the disks. It > is undisputed also that DeCSS defeats CSS and decrypts copyrighted works > without the authority of the copyright owners." [ ... ] Would a copyright owner ever authorize access to an infringing copy of their work? When illicit industrial duplication is done, a media-level bit-for-bit copy of the DVD is produced. The player device only knows about the bit-pattern on the disk, so it can't tell infringing from non-infringing. This isn't an argument against the validity of § 1201(a), or (b). It is an argument against saying the authority comes with the player key. Why would any sane copyright holder agree to a system that can't possibly detect illegal duplicates, and then grant authority based on that failure to distinguish? If there is an exact correspondence between authorized duplicates and disks one is authorized to play, this points towards the media proper as the authority to play. Counter-arguments? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:28:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16083 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:28:32 -0500 Received: from dial118.roadrunner.com (dial118.cybermesa.com [209.12.75.118]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA16080 for ; Fri, 17 Mar 2000 15:28:29 -0500 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id OAA01297 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 14:45:14 -0700 Date: Fri, 17 Mar 2000 14:45:13 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317144513.A1274@localhost> References: <20000317210448.34600.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000317210448.34600.qmail@hotmail.com>; from jadaub@hotmail.com on Fri, Mar 17, 2000 at 04:04:48PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 04:04:48PM -0500, Joshua Daub wrote: > THE COURT: Defense attorney, do you have any evidence that DeCSS was > authorized by ANYONE? Is there any question that DeCSS is NOT an authorized > player key? In fact, didn't you admit that DeCSS allows one to view a DVD > without an authorized player key? > > DEFENSE: Well, um, your honor. > > THE COURT: Next issue. Point taken. Next issue. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:46:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18944 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:46:40 -0500 Received: from dial118.roadrunner.com (dial118.cybermesa.com [209.12.75.118]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18926 for ; Fri, 17 Mar 2000 15:46:38 -0500 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id PAA01368 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 15:03:25 -0700 Date: Fri, 17 Mar 2000 15:03:24 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317150323.A1340@localhost> References: <20000317210448.34600.qmail@hotmail.com> <38D2A6A9.69EBA53A@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38D2A6A9.69EBA53A@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Mar 17, 2000 at 04:42:01PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 04:42:01PM -0500, Ian Hay wrote: > Joshua Daub wrote: > > My prediction: > > > > THE DEFENSE: Your honor, the average user has no way of knowing whether the > > appropriate party has authorized the use of the player key used on a > > particular DVD/Player. Therefore, the average user of a DVD has no way of > > knowing whether the playing of a DVD on even a storebought player violates > > the Act. > > > > THE COURT: Defense attorney, do you have any evidence that DeCSS was > > authorized by ANYONE? Is there any question that DeCSS is NOT an authorized > > player key? In fact, didn't you admit that DeCSS allows one to view a DVD > > without an authorized player key? > > THE DEFENSE: Your honour, the prohibition is not against unauthorized > devices that decrypt copyrighted works, but against use of a device to > decrypt copyrighted works without authorization. There is a subtle, but > important difference. DeCSS need not itself be authorized, only the act > of decrypting with that device. It is the -act- of decrypting that is > under review in determining whether circumvention has taken place, not > the device itself. THE COURT: What would (a)(2) then be preventing? Would all trafficking in access devices then be legal? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:53:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20905 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:53:04 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA20902 for ; Fri, 17 Mar 2000 15:53:00 -0500 Received: (qmail 27144 invoked by uid 60001); 17 Mar 2000 22:06:24 -0000 Message-ID: <20000317220624.27143.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Fri, 17 Mar 2000 14:06:24 PST Date: Fri, 17 Mar 2000 14:06:24 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] CNN v VMS : The Right to Access To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have found a 1991 decision from the 11th Circuit Court of Appeals that argues that after reproduction for sale of copyrighted works, access is a right of the public. It derives this "quid pro quo" from both the Copyright Clause and the First Amendment. The opinion states that the purpose for codifying "fair use" in the statute of 1976 was to preserve the public right of access in light of the removal of publication as a requirement for copyright. This is a powerful philosophy of copyright: the very PURPOSE of copyright is to provide the public with access to works. I encourage everyone to read this case ! The upshot of this is that 1201 violates the "right to access" guaranteed by the Copyright Clause and the First Amendment. The case is: ________________ CNN v Video Monitoring Services 940 F.2d 1471 (1991) http://eon.law.harvard.edu/openlaw/DVD/cases/CNN_v_VMS.html "This case illustrates the situation in which rights under the Copyright Clause of the United States Constitution, article 1, section 8, clause 8, collide with the First Amendment's right of free speech. The emergence of certain modern developments in the areas of copyright, First Amendment law, and technology presaged and ordained this collision. These legal developments embrace: (1) the interpretation of the First Amendment recognizing that free speech encompasses the right of access to the free flow of ideas; and, (2) the elimination of the requirement of publication as a condition for statutory copyright, thereby ensuring public access." "The Copyright Clause itself describes the concept of copyright intended by its framers; that is, the grant of an exclusive right to authors to reproduce their writings for sale during a limited period of time in exchange for the author's making the work available to the public in order to promote learning.12 This quid pro quo reflects a fundamental fairness to both the public, the 'owner' of the public domain, and the author who takes from the public domain the ideas which are the substance of such author's protected original expression.13 [F.2d 1479] This view of copyright protection is in harmony with the First Amendment doctrine that free speech encompasses 'public access to discussion, debate and dissemination of information and ideas.' Board of Education v. Pico, 457 U.S. 853, 866 ... (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 ...) " "In a society where the free flow of and access to ideas is mandated by the First Amendment, it would be particularly pernicious to allow the news media, cloaked in the privileges of the First Amendment, to thwart such access and to control such flow under the title of a copyright owner." "The doctrine of 'fair use' was codified for the first time in the 1976 Copyright Act ('the Act'). Its codification reflected the concern of the Congress that the interest of the public be protected; that access to the source of all ideas, the public domain, remain unrestricted. Since the Act no longer required publication, which historically ensured the right of access, as a condition for statutory copyright, Congress added the 'fair use' provisions found at 17 U.S.C. § 107.21 This supplemented the admonition under 17 U.S.C. § 102(b) that: 'In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.' Moreover, the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate ideas underscores the need for courts to exercise great care when fashioning injunctive relief in the copyright arena. '[Copyright] protection has never accorded the copyright owner complete control over all possible uses of his work.' Sony Corp. v. Universal City Studios, 464 U.S. 417, 432 ... (1984)." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:54:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21307 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:54:42 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21304 for ; Fri, 17 Mar 2000 15:54:41 -0500 Received: from sympatico.ca ([209.226.230.157]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000317220737.XHYE13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Fri, 17 Mar 2000 17:07:37 -0500 Message-ID: <38D2AE8F.613AB1C1@sympatico.ca> Date: Fri, 17 Mar 2000 17:15:43 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <20000317210448.34600.qmail@hotmail.com> <38D2A6A9.69EBA53A@sympatico.ca> <20000317150323.A1340@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > On Fri, Mar 17, 2000 at 04:42:01PM -0500, Ian Hay wrote: > > Joshua Daub wrote: > > > My prediction: > > > > > > THE DEFENSE: Your honor, the average user has no way of knowing whether the > > > appropriate party has authorized the use of the player key used on a > > > particular DVD/Player. Therefore, the average user of a DVD has no way of > > > knowing whether the playing of a DVD on even a storebought player violates > > > the Act. > > > > > > THE COURT: Defense attorney, do you have any evidence that DeCSS was > > > authorized by ANYONE? Is there any question that DeCSS is NOT an authorized > > > player key? In fact, didn't you admit that DeCSS allows one to view a DVD > > > without an authorized player key? > > > > THE DEFENSE: Your honour, the prohibition is not against unauthorized > > devices that decrypt copyrighted works, but against use of a device to > > decrypt copyrighted works without authorization. There is a subtle, but > > important difference. DeCSS need not itself be authorized, only the act > > of decrypting with that device. It is the -act- of decrypting that is > > under review in determining whether circumvention has taken place, not > > the device itself. > > THE COURT: What would (a)(2) then be preventing? Would all trafficking > in access devices then be legal? THE DEFENSE: No, your honour, of course not. (a)(2) would still be applicable to the situations clearly envisaged by Congress in the legislative history, i.e. protection against unauthorized access to one-time-only transmissions of audiovisual or other works over the internet. (See http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear evidence of such legislative intent.) An unlicensed access device could be used in such circumstances to gain access to streaming media -without paying- for such an internet transmission. Such a device would have no other purpose but to evade due payment, and would therefore clearly facilitate unauthorized access. It would thus clearly fall within the definition of 'circumvention'. In the case of DeCSS, in stark contrase, such a device is primarily used, and can only conceivably be used, do access a work -after- due payment. Such a scenario may not have been clearly contemplated in the congressional record, but the intent of Congress was clearly not to prevent access by bona fide purchasers for value of such audiovisual works. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 15:58:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22887 for dvd-discuss-outgoing; Fri, 17 Mar 2000 15:58:44 -0500 Received: from dial118.roadrunner.com (dial118.cybermesa.com [209.12.75.118]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22866 for ; Fri, 17 Mar 2000 15:58:41 -0500 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id PAA01401 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 15:15:29 -0700 Date: Fri, 17 Mar 2000 15:15:28 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317151527.B1340@localhost> References: <20000317210448.34600.qmail@hotmail.com> <38D2A6A9.69EBA53A@sympatico.ca> <20000317150323.A1340@localhost> <38D2AE8F.613AB1C1@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38D2AE8F.613AB1C1@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Mar 17, 2000 at 05:15:43PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 05:15:43PM -0500, Ian Hay wrote: [ ... ] > > THE COURT: What would (a)(2) then be preventing? Would all trafficking > > in access devices then be legal? > > THE DEFENSE: No, your honour, of course not. (a)(2) would still be > applicable to the situations clearly envisaged by Congress in the > legislative history, i.e. protection against unauthorized access to > one-time-only transmissions of audiovisual or other works over the > internet. (See > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear > evidence of such legislative intent.) An unlicensed access device could > be used in such circumstances to gain access to streaming media -without > paying- for such an internet transmission. Such a device would have no > other purpose but to evade due payment, and would therefore clearly > facilitate unauthorized access. It would thus clearly fall within the > definition of 'circumvention'. In the case of DeCSS, in stark contrase, > such a device is primarily used, and can only conceivably be used, do > access a work -after- due payment. Such a scenario may not have been > clearly contemplated in the congressional record, but the intent of > Congress was clearly not to prevent access by bona fide purchasers for > value of such audiovisual works. I like it. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 16:12:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27117 for dvd-discuss-outgoing; Fri, 17 Mar 2000 16:12:04 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27114 for ; Fri, 17 Mar 2000 16:12:02 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 17 Mar 2000 14:25:48 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19C0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention or Access? Date: Fri, 17 Mar 2000 14:25:47 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > > > Actually after reading Ian's msg I have a clearer > > idea of where that leaves us: attempting to determine > > the point at which access becomes authorized. Since > > it is authorized explicitly neither at point of DVD > > sale nor at point of player sale, it must be -implicitly- > > authorized at some point ... and the only point at > > which that makes sense is at point of sale of the DVD > > itself. > > Well from what I've read that's arguable, certainly > MPAA will not argue for authorization at point of sale or > any time prior to actual decrypting by licensed players. > Well ... with DIVX that could certainly have been the case, since there was a transaction between the DIVX player and some central authority to unlock the ability to play the disc. But w/ a standard DVD there is no transaction between me and some other agency at the time of playing the DVD, so that can not be the point at which authorization takes place. They may want to argue that authorization takes place when the licensed player is sold to me ... but there is certainly no notification on the DVD when it is sold that I might not be authorized to use it. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 16:17:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27849 for dvd-discuss-outgoing; Fri, 17 Mar 2000 16:17:29 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27846 for ; Fri, 17 Mar 2000 16:17:28 -0500 Received: from sympatico.ca ([209.226.230.157]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000317223025.XMYG13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Fri, 17 Mar 2000 17:30:25 -0500 Message-ID: <38D2B3E6.1F724972@sympatico.ca> Date: Fri, 17 Mar 2000 17:38:30 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <5A8391CA2D9ED311AFAA080009D982B10B19C0@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > > -----Original Message----- > > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > > > > > Actually after reading Ian's msg I have a clearer > > > idea of where that leaves us: attempting to determine > > > the point at which access becomes authorized. Since > > > it is authorized explicitly neither at point of DVD > > > sale nor at point of player sale, it must be -implicitly- > > > authorized at some point ... and the only point at > > > which that makes sense is at point of sale of the DVD > > > itself. > > > > Well from what I've read that's arguable, certainly > > MPAA will not argue for authorization at point of sale or > > any time prior to actual decrypting by licensed players. > > > > Well ... with DIVX that could certainly have been the > case, since there was a transaction between the DIVX > player and some central authority to unlock the ability > to play the disc. But w/ a standard DVD there is no > transaction between me and some other agency at the time > of playing the DVD, so that can not be the point at which > authorization takes place. > > They may want to argue that authorization takes place > when the licensed player is sold to me ... but there > is certainly no notification on the DVD when it is > sold that I might not be authorized to use it. Indeed, as I've already noted elsewhere, the Xing license specifically -excludes- an interpretation that authorization to decrypt ("any rights in") a particular movie is granted by that license. I've seen the Xing license, because it forms part of the record of the DVD-CCA case. Anyone care to reproduce here the software licenses for other software DVD players, SVP? I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 16:37:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32238 for dvd-discuss-outgoing; Fri, 17 Mar 2000 16:37:56 -0500 Received: from smtp10.atl.mindspring.net (smtp10.atl.mindspring.net [207.69.200.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA32235 for ; Fri, 17 Mar 2000 16:37:55 -0500 Received: from mindspring.com (user-2ivf1b8.dialup.mindspring.com [165.247.133.104]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with ESMTP id RAA25987 for ; Fri, 17 Mar 2000 17:51:21 -0500 (EST) Message-ID: <38D2B603.48361D68@mindspring.com> Date: Fri, 17 Mar 2000 17:47:31 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? References: <20000317190409.19568.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > >From: Jeff Waller > > > > > > Even the authorized devices must circumvent the > > > > > access protection mechanism to obtain access. It > > > > > is just that their circumvention has been authorized > > > > > by (someone) while DeCSS performs unauthorized > > > > > circumvention. > > > > > > > > > > Where this distinction leads in a legal sense, I > > > > > don't know. [ ...] > > > > > > > > there you go. > > > > > > Actually after reading Ian's msg I have a clearer > > > idea of where that leaves us: attempting to determine > > > the point at which access becomes authorized. Since > > > it is authorized explicitly neither at point of DVD > > > sale nor at point of player sale, it must be -implicitly- > > > authorized at some point ... and the only point at > > > which that makes sense is at point of sale of the DVD > > > itself. > > > >Well from what I've read that's arguable, certainly > >MPAA will not argue for authorization at point of sale or > >any time prior to actual decrypting by licensed players. > > > >-Jeff > > > > > > I just re-read Kaplan's opinion for the preliminary injunction. I think it > gives us a good indication where/when/how Judge Kaplan believes > authorization to take place. And it is not good news: > > 2. DMCA Violation > > [. . .] > > "Here, it is perfectly clear that CSS is a technological measure that > effectively controls access to plaintiffs' copyrighted movies because it > requires the application of information or a process, with the authority of > the copyright owner, to gain access to those works. Indeed, defendants > conceded in their memorandum that one cannot in the ordinary course gain > access to the copyrighted works on plaintiffs' DVDs without a "player key'' I think I remember where Judge Kaplan got this idea; some thing like (and sorry I can't find the record) Kaplan: Is there any question at all that DeCSS circumvents [...] EFFLawer:Well, it does decrypt it Kaplan: Ok, let's move on. > > issued by the DVDCCA that permits unscrambling the contents of the disks. It > is undisputed also that DeCSS defeats CSS and decrypts copyrighted works > without the authority of the copyright owners. It seemed that from the record that all sides assumed that DeCSS was unauthorized with the rest simply being a argument as how it fit into the definition of circumvention. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 16:55:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01384 for dvd-discuss-outgoing; Fri, 17 Mar 2000 16:55:11 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA01381 for ; Fri, 17 Mar 2000 16:55:10 -0500 Received: (qmail 29155 invoked by uid 60001); 17 Mar 2000 23:08:35 -0000 Message-ID: <20000317230835.29154.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Fri, 17 Mar 2000 15:08:35 PST Date: Fri, 17 Mar 2000 15:08:35 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Circumvention or Access? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > THE COURT: What would (a)(2) then be preventing? Would all > trafficking in access devices then be legal? The provision in (a)(2) is designed to ban trafficking in tools that provide access to copyrighted material in avoidance of payment to the copyright holder. For an example, see Streambox, where access was provided by a tools when no licence to any work had been obtained: http://eon.law.harvard.edu/openlaw/DVD/cases/Realnetworks_v_Steambox.html The Constitution grants Congress the power to secure to the copyright holder only enough of a monopoly to allow financial reward in exchange for providing the public with access to his works. The copyright holder cannot take his profit and then keep control of the access to the copies of his work that he has sold, even with the help of Congress. The very purpose of the copyright power is to induce the release of such control for the public benefit. Nor can Congress use the Commerce power to grant what is forbidden to it by the Copyright power. Access after sale is the public's right. CNN_v_VMS (1991) http://eon.law.harvard.edu/openlaw/DVD/cases/CNN_v_VMS.html __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 17:21:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05207 for dvd-discuss-outgoing; Fri, 17 Mar 2000 17:21:35 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA05175 for ; Fri, 17 Mar 2000 17:21:34 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id QAA12666 for ; Fri, 17 Mar 2000 16:38:13 -0600 Date: Fri, 17 Mar 2000 16:38:13 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? In-Reply-To: <38D2B603.48361D68@mindspring.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 17 Mar 2000, Jeff Waller wrote: > Kaplan: Is there any question at all that DeCSS circumvents [...] > EFFLawer:Well, it does decrypt it > Kaplan: Ok, let's move on. I'd be curious to see the exact exchange. The process by which a DVD is played necessitates decryption of the data. Whether the player is licensed or not has nothing to do with this fact. So, Kaplan's conclusion seems to assume that decryption is not a valid part of the process of playing a DVD. Somebody needs to clear this up with him... ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 17:41:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10385 for dvd-discuss-outgoing; Fri, 17 Mar 2000 17:41:56 -0500 Received: from dial165.roadrunner.com (dial165.cybermesa.com [209.12.75.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10382 for ; Fri, 17 Mar 2000 17:41:53 -0500 Received: (from paul@localhost) by dial165.roadrunner.com (8.8.7/8.8.7) id QAA01773 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 16:58:42 -0700 Date: Fri, 17 Mar 2000 16:58:40 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000317165840.A1763@localhost> References: <20000317210448.34600.qmail@hotmail.com> <38D2A6A9.69EBA53A@sympatico.ca> <20000317150323.A1340@localhost> <38D2AE8F.613AB1C1@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38D2AE8F.613AB1C1@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Mar 17, 2000 at 05:15:43PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 05:15:43PM -0500, Ian Hay wrote: > Paul Fenimore wrote: > > THE COURT: What would (a)(2) then be preventing? Would all trafficking > > in access devices then be legal? > > THE DEFENSE: No, your honour, of course not. (a)(2) would still be > applicable to the situations clearly envisaged by Congress in the > legislative history, i.e. protection against unauthorized access to > one-time-only transmissions of audiovisual or other works over the > internet. (See > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear > evidence of such legislative intent.) An unlicensed access device could > be used in such circumstances to gain access to streaming media -without > paying- for such an internet transmission. Such a device would have no > other purpose but to evade due payment, and would therefore clearly > facilitate unauthorized access. It would thus clearly fall within the > definition of 'circumvention'. In the case of DeCSS, in stark contrast, > such a device is primarily used, and can only conceivably be used, do > access a work -after- due payment. Such a scenario may not have been > clearly contemplated in the congressional record, but the intent of > Congress was clearly not to prevent access by bona fide purchasers for > value of such audiovisual works. THE DEFENSE: You honor, I'd like to make one more point, if I may. THE COURT: OK. THE DEFENSE: It is possible for the CSS licensing body to revoke a player key. If this body were to revoke all player keys, en masse, and as part of new contracts for licensing the CSS system, forbid the use of old player keys, then new players would be unable to access material protected by _old_ player keys. Under the plaintiffs' reading of (a)(2) it would be illegal to traffic in devices that used the old player keys, because they would be accessing "without authority." This reading of (a)(2) leads to an absurd result because Congress never intended (a)(2) to forbid the use of a player key necessary to access a legitimate copy. It was intended to focus on illegitimate acts of access, not supposedly illegitimate keys. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 20:43:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17492 for dvd-discuss-outgoing; Fri, 17 Mar 2000 20:43:45 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA17489 for ; Fri, 17 Mar 2000 20:43:43 -0500 Received: from bugbug (max01-31.suba.com [206.69.121.223]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA05678 for ; Fri, 17 Mar 2000 20:57:09 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Circumvention or Access? Date: Fri, 17 Mar 2000 20:56:12 -0600 Message-ID: <000001bf9085$85297500$df7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000317165840.A1763@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just want to say that I am following this string in. complete. awe. F ing fabulous. I have one thing to add, not by way of argument but of strategy. It would be more than worthwhile to develop an argument that addressed the possibility of the MPAA's claiming that authority did indeed stem from the player somehow. While, in light of the argument presented in this string, such a claim would seem absurd, let's say for argument that it isn't. If we had an argument that convincingly showed that authority from purchase of player = tying, taking a cue from an earlier post of Bryan's, then the MPAA would be caught on the horns of a dilemma. There would simply be no way out. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore > Sent: Friday, March 17, 2000 5:59 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Circumvention or Access? > > > On Fri, Mar 17, 2000 at 05:15:43PM -0500, Ian Hay wrote: > > Paul Fenimore wrote: > > > THE COURT: What would (a)(2) then be preventing? Would all trafficking > > > in access devices then be legal? > > > > THE DEFENSE: No, your honour, of course not. (a)(2) would still be > > applicable to the situations clearly envisaged by Congress in the > > legislative history, i.e. protection against unauthorized access to > > one-time-only transmissions of audiovisual or other works over the > > internet. (See > > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear > > evidence of such legislative intent.) An unlicensed access device could > > be used in such circumstances to gain access to streaming media -without > > paying- for such an internet transmission. Such a device would have no > > other purpose but to evade due payment, and would therefore clearly > > facilitate unauthorized access. It would thus clearly fall within the > > definition of 'circumvention'. In the case of DeCSS, in stark contrast, > > such a device is primarily used, and can only conceivably be used, do > > access a work -after- due payment. Such a scenario may not have been > > clearly contemplated in the congressional record, but the intent of > > Congress was clearly not to prevent access by bona fide purchasers for > > value of such audiovisual works. > > THE DEFENSE: You honor, I'd like to make one more point, if I may. > > THE COURT: OK. > > THE DEFENSE: It is possible for the CSS licensing body to revoke > a player key. If this body were to revoke all player keys, en masse, > and as part of new contracts for licensing the CSS > system, forbid the use of old player keys, then new players would > be unable to access material protected by _old_ player keys. Under > the plaintiffs' reading of (a)(2) it would be illegal to > traffic in devices that used the old player keys, because they would > be accessing "without authority." This reading of (a)(2) leads to an > absurd result because Congress never intended (a)(2) to forbid the > use of a player key necessary to access a legitimate copy. It was > intended to focus on illegitimate acts of access, not supposedly > illegitimate keys. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 21:05:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21070 for dvd-discuss-outgoing; Fri, 17 Mar 2000 21:05:49 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA21067 for ; Fri, 17 Mar 2000 21:05:47 -0500 Received: from bugbug (max01-31.suba.com [206.69.121.223]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA06074 for ; Fri, 17 Mar 2000 21:19:13 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] CNN v VMS : The Right to Access Date: Fri, 17 Mar 2000 21:18:16 -0600 Message-ID: <000101bf9088$9a1e6b20$df7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000317220624.27143.qmail@web505.mail.yahoo.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu An interesting thing about this is that, contrary to Ian's statement in the "authorization argument" string that his argument didn't rely on fair use or free speech, it seems that it actually does. Just bringing it up. :) It's a fabulous argument no matter what it's based on. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Bryan Taylor > Sent: Friday, March 17, 2000 4:06 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] CNN v VMS : The Right to Access > > > > I have found a 1991 decision from the 11th Circuit Court of Appeals > that argues that after reproduction for sale of copyrighted works, > access is a right of the public. It derives this "quid pro quo" from > both the Copyright Clause and the First Amendment. > > The opinion states that the purpose for codifying "fair use" in the > statute of 1976 was to preserve the public right of access in light of > the removal of publication as a requirement for copyright. > > This is a powerful philosophy of copyright: the very PURPOSE of > copyright is to provide the public with access to works. I encourage > everyone to read this case ! The upshot of this is that 1201 violates > the "right to access" guaranteed by the Copyright Clause and the First > Amendment. > > The case is: > ________________ > > CNN v Video Monitoring Services > 940 F.2d 1471 (1991) > http://eon.law.harvard.edu/openlaw/DVD/cases/CNN_v_VMS.html > > "This case illustrates the situation in which rights under the > Copyright Clause of the United States Constitution, article 1, section > 8, clause 8, collide with the First Amendment's right of free speech. > The emergence of certain modern developments in the areas of copyright, > First Amendment law, and technology presaged and ordained this > collision. These legal developments embrace: (1) the interpretation of > the First Amendment recognizing that free speech encompasses the right > of access to the free flow of ideas; and, (2) the elimination of the > requirement of publication as a condition for statutory copyright, > thereby ensuring public access." > > "The Copyright Clause itself describes the concept of copyright > intended by its framers; that is, the grant of an exclusive right to > authors to reproduce their writings for sale during a limited period of > time in exchange for the author's making the work available to the > public in order to promote learning.12 This quid pro quo reflects a > fundamental fairness to both the public, the 'owner' of the public > domain, and the author who takes from the public domain the ideas which > are the substance of such author's protected original expression.13 > [F.2d 1479] This view of copyright protection is in harmony with the > First Amendment doctrine that free speech encompasses 'public access to > discussion, debate and dissemination of information and ideas.' Board > of Education v. Pico, 457 U.S. 853, 866 ... (quoting First Nat'l Bank > of Boston v. Bellotti, 435 U.S. 765, 783 ...) " > > "In a society where the free flow of and access to ideas is mandated by > the First Amendment, it would be particularly pernicious to allow the > news media, cloaked in the privileges of the First Amendment, to thwart > such access and to control such flow under the title of a copyright > owner." > > "The doctrine of 'fair use' was codified for the first time in the 1976 > Copyright Act ('the Act'). Its codification reflected the concern of > the Congress that the interest of the public be protected; that access > to the source of all ideas, the public domain, remain unrestricted. > Since the Act no longer required publication, which historically > ensured the right of access, as a condition for statutory copyright, > Congress added the 'fair use' provisions found at 17 U.S.C. § 107.21 > This supplemented the admonition under 17 U.S.C. § 102(b) that: 'In no > case does copyright protection for an original work of authorship > extend to any idea, procedure, process, system, method of operation, > concept, principle, or discovery, regardless of the form in which it is > described, explained, illustrated, or embodied in such work.' Moreover, > the emergence of the doctrine that free speech encompasses the right to > have access to, as well as the right to disseminate ideas underscores > the need for courts to exercise great care when fashioning injunctive > relief in the copyright arena. '[Copyright] protection has never > accorded the copyright owner complete control over all possible uses of > his work.' Sony Corp. v. Universal City Studios, 464 U.S. 417, > 432 ... (1984)." > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 21:33:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24247 for dvd-discuss-outgoing; Fri, 17 Mar 2000 21:33:11 -0500 Received: from mits_perth_com1.mitswa.com.au ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA24244 for ; Fri, 17 Mar 2000 21:33:08 -0500 Received: by intranet.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Sat, 18 Mar 2000 11:26:00 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF037075@intranet.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention or Access? Date: Sat, 18 Mar 2000 11:25:56 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Congress did anticipate that the DMCA may be used as it is, have a look at http://technocrat.net/949957090/index_html here are some snipits I have randomly cut&pasted, so you may wish to check context. I was repeatedly assured that the device prohibitions in 1201(a)(2) and 1201(b) are aimed at so-called `black boxes' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. . As a result, neither section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses ...the possibility of our society becoming one in which pay-per-use access was the rule, a development profoundly antithetical to our long tradition of the exchange of free ideas and information. Under the compromise embodied in the Conference Report, the Librarian will have the authority to address the concerns of Libraries, educational institutions, and other information consumers threatened with a denial of access to work in circumstances that would be lawful today. I trust the Librarian, in consultation with the Assistant Secretary of Commerce for Communications and Information, will ensure that information consumers may continue to exercise their centuries-old fair use privilege." ...intended to ensure that persons (including institutions) will continue to be able to get access to copyrighted works in the future. "...If history is a guide, someone may yet try to use this bill as a basis for filing a lawsuit to stop legitimate new products from coming to market. . Imposing design requirements on product and component manufacturers would have a dampening effect on innovation, on the research and development of new products, and hence on the growth of electronic commerce. I'm very pleased that the conferees have meaningfully clarified that the Sony decision remains valid law. They have also successfully limited the interpretation of Sections 1201(a)(2) and (b)(1), the `device' provisions, to outlaw only those products having no legitimate purpose. As the conference report makes clear, these two sections now must be read to support, not stifle, staple articles of commerce, such as consumer electronics, telecommunications, and computer products used by businesses and consumers everyday, for perfectly legitimate purposes." ...it was not the Committee's intention that such useful multipurpose articles of commerce be prohibited by 1201 on the basis that they may have particular parts or components that might, if evaluated separately from such products, fall within the proscriptions of 1201(a)(2) or (b). My amendment adding sections 1201(d)(2) and (3) was intended to address these concerns." other rerference on this site :The Congressional Record is searchable on the internet at . Search the 105th Congress to find the referenced statements. My personal interest (apart from general right protection) is that I currently produce car MP3 players, in the near future I would like to be able to produce a car DVD player- without the fragile DVD drive, ie. decrypt movie, copy to car by either removable drive or high speed network. As such a product requires decrypting the video and I do not have the resources or inclination to become an authorised player (my designs are meant to be totaly open so it can be DIY), this point of law is holding up my product. If you are wondering why it must be decrypted video in the car, it is because the car player needs to be as simple as possible and just play an MPEG regardless of purchased, home made, VCD/DVD, computer generated animation. If any lawyers have comments on what I inted to do please advise!! My current MP3 stuff is at http://www.opendesign.cx cya, Andrew... > -----Original Message----- > From: Ian Hay [SMTP:ian.hay@sympatico.ca] > Sent: Saturday, 18 March 2000 6:16 > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Circumvention or Access? > > Paul Fenimore wrote: > > > > On Fri, Mar 17, 2000 at 04:42:01PM -0500, Ian Hay wrote: > > > Joshua Daub wrote: > > > > My prediction: > > > > > [Andrew] > THE DEFENSE: No, your honour, of course not. (a)(2) would still be > applicable to the situations clearly envisaged by Congress in the > legislative history, i.e. protection against unauthorized access to > one-time-only transmissions of audiovisual or other works over the > internet. (See > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear > evidence of such legislative intent.) An unlicensed access device could > be used in such circumstances to gain access to streaming media -without > paying- for such an internet transmission. Such a device would have no > other purpose but to evade due payment, and would therefore clearly > facilitate unauthorized access. It would thus clearly fall within the > definition of 'circumvention'. In the case of DeCSS, in stark contrase, > such a device is primarily used, and can only conceivably be used, do > access a work -after- due payment. Such a scenario may not have been > clearly contemplated in the congressional record, but the intent of > Congress was clearly not to prevent access by bona fide purchasers for > value of such audiovisual works. > > > > -- > ____ > | | Ian R. Hay > |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 21:49:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26627 for dvd-discuss-outgoing; Fri, 17 Mar 2000 21:49:07 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA26624 for ; Fri, 17 Mar 2000 21:49:06 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA18138 for dvd-discuss@eon.law.harvard.edu; Fri, 17 Mar 2000 19:59:39 -0800 Date: Fri, 17 Mar 2000 19:59:38 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Roman Kazan stipulates to permanent injunction Message-ID: <20000317195938.M13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young writes: > Roman Kazan has provided the Consent Judgment signed > today by Judge Lewis Kaplan in the Southern District of New > York: > > http://cryptome.org/dvd-mpaa-3-rk.htm -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 22:52:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32610 for dvd-discuss-outgoing; Fri, 17 Mar 2000 22:52:47 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA32584 for ; Fri, 17 Mar 2000 22:52:42 -0500 Received: (qmail 2054 invoked by uid 500); 18 Mar 2000 05:11:25 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 18 Mar 2000 05:11:25 -0000 Date: Fri, 17 Mar 2000 21:11:25 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Roman Kazan stipulates to permanent injunction In-Reply-To: <20000317195938.M13379@cty-alum.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu How many more innocent people are needed to drag into court before we stand against the immediate threat of a court system who abuses its power on new regulation without the respect to the innocence of people. Where does "innocent until proven guilty"? Where? Enough is enough! On Fri, 17 Mar 2000, Seth David Schoen wrote: > John Young writes: > > > Roman Kazan has provided the Consent Judgment signed > > today by Judge Lewis Kaplan in the Southern District of New > > York: > > > > http://cryptome.org/dvd-mpaa-3-rk.htm > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 23:04:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA01067 for dvd-discuss-outgoing; Fri, 17 Mar 2000 23:04:42 -0500 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA01064 for ; Fri, 17 Mar 2000 23:04:41 -0500 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA00145 for ; Sat, 18 Mar 2000 00:18:09 -0500 (EST) Date: Sat, 18 Mar 2000 00:18:09 -0500 (EST) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Roman Kazan stipulates to permanent injunction In-Reply-To: <20000317195938.M13379@cty-alum.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry if this seems like a reall dumb question but I was wondering if anyone had a legal definition of what was meant by "end user." As in "i) is primarily designed for the purpose of circumventing, or circumventing the protection afforded by, the Contents Scramble System ("CSS"), or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof, " I'm just trying to understand if the legal phrasing just reiterates traditional rights of copyright, or whether the MPAA's lawyers are expanding the scope of their claim... Probably not, but just making sure... Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 23:23:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02848 for dvd-discuss-outgoing; Fri, 17 Mar 2000 23:23:29 -0500 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA02845 for ; Fri, 17 Mar 2000 23:23:28 -0500 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA22389 for ; Sat, 18 Mar 2000 00:36:56 -0500 (EST) Date: Sat, 18 Mar 2000 00:36:56 -0500 (EST) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] ATI EULA Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Someone asked for examples of EULAs for various DVD players. Here is the agreement for the ATI DVD player (v 3.0). It appears to be pretty standard-- nothing specifically about DVDs. Items 5 and 9 pretty much rule out the "with purchase of player comes license to view" theory. Jeremy "End User License Agreement PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. If you do not agree to these terms, promptly return all software items (disk written materials and packaging) for a full refund. 1. License. The software accompanying this License (hereinafter "Software"), regardless of the media on which it is distributed, is licensed to you solely subject to the following terms and conditions. You own the medium on which the Software is recorded, but no rights to the software or its related documentation are granted except as expressly stated below. You may: a) make one copy of the Software in machine-readable form for backup purposes only. You must reproduce on such copy all copyright notices and any other proprietary legends that were on the original copy of the Software; b) transfer all your license rights in the Software provided you must also transfer a copy of this License, the backup copy of the Software, and the related documentation and provided the other party reads and agrees to accept the terms and conditions of this License. Upon such transfer your license is then terminated. 2. Restrictions. The Software contains copyrighted and patented material, trade secrets and other proprietary material. In order to protect them, and except as permitted by applicable legislation, you may not: a) decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form; b) modify, network, rent, lend, loan, distribute or create derivative works based upon the Software in whole or in part; or c) electronically transmit the Software from one computer to another or over a network or otherwise transfer the Software except as permitted by this License. 3. Termination. This License is effective until terminated. You may terminate this License at any time by destroying the Software, related documentation and all copies thereof. This License will terminate immediately without notice if you fail to comply with any provision of this License. Upon termination you must destroy the Software, related documentation and all copies thereof. 4. Government End Users. If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees the Software and documentation were developed at private expense and are provided with "RESTRICTED RIGHTS". Use, duplication, or disclosure by the Government is subject to restrictions as set forth in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct 1988), FAR 12.212(a)(1995), FAR 52.227-19, (June 1987) or FAR 52.227-14(ALT III) (June 1987),as amended from time to time. In the event that this License, or any part thereof, is deemed inconsistent with the minimum rights identified in the Restricted Rights provisions, the minimum rights shall prevail. 5. No Other License. No rights or licenses are granted under this License, expressly or by implication, with respect to any proprietary information or patent, copyright, trade secret or other intellectual property right except as expressly provided in this License. 6. Disclaimer of Warranty on Software. You expressly acknowledge and agree that use of the Software is at your sole risk. The Software and related documentation are provided "AS IS" and without warranty of any kind and ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, THERE IS NO WARRANTY OR REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE OTHERWISE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ALONE ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE SOFTWARE IS NOT INTENDED FOR USE IN MEDICAL, LIFE SAVING OR LIFE SUSTAINING APPLICATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. 7. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE SHALL ANY PARTY BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, BREACH OR DEFAULT, INCLUDING THOSE ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT EVEN IF THERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 8. Controlling Law and Severability. This License shall be governed by and construed under the laws of the province of Ontario, Canada without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Canadian law, rules, and regulations, Canadian law, rules and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this License. If for any reason a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect. 9. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Software and the related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing. " From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 23:40:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA04321 for dvd-discuss-outgoing; Fri, 17 Mar 2000 23:40:01 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA04318 for ; Fri, 17 Mar 2000 23:40:00 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id WAA21971 for ; Fri, 17 Mar 2000 22:56:47 -0600 Date: Fri, 17 Mar 2000 22:56:47 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ATI EULA In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 18 Mar 2000, Jeremy A Erwin wrote: > 5. No Other License. No rights or licenses are granted under this > License, expressly or by implication, with respect to any proprietary > information or patent, copyright, trade secret or other intellectual > property right except as expressly provided in this License. Actually, this statement has nothing to do with the DVD, it is referring simply to the media and the software which is used to decode the DVD. It is not making a statement about the copyright issues of the DVD. If you bought a word processor it would have the same legal language in the EULA, but it wouldn't have anything to do with your ability to access and copy electronic documents. > 8. Controlling Law and Severability. This License shall be governed by > and construed under the laws of the province of Ontario, Canada without > reference to its conflict of law principles. In the event of any > conflicts between foreign law, rules, and regulations, and Canadian law, > rules, and regulations, Canadian law, rules and regulations shall prevail > and govern. The United Nations Convention on Contracts for the > International Sale of Goods shall not apply to this License. If for any > reason a court of competent jurisdiction finds any provision of this > License or portion thereof, to be unenforceable, that provision of the > License shall be enforced to the maximum extent permissible so as to > effect the intent of the parties, and the remainder of this License shall > continue in full force and effect. And even if this EULA applied to the DVD it says that the EULA is governed by Candian law where the DMCA does not apply. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 17 23:51:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA04724 for dvd-discuss-outgoing; Fri, 17 Mar 2000 23:51:09 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA04721 for ; Fri, 17 Mar 2000 23:51:08 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id BAA18106 for ; Sat, 18 Mar 2000 01:04:37 -0500 (EST) Date: Sat, 18 Mar 2000 01:04:37 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ATI EULA In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 17 Mar 2000, Steve Stearns wrote: > On Sat, 18 Mar 2000, Jeremy A Erwin wrote: > > > 5. No Other License. No rights or licenses are granted under this > > License, expressly or by implication, with respect to any proprietary > > information or patent, copyright, trade secret or other intellectual > > property right except as expressly provided in this License. > > Actually, this statement has nothing to do with the DVD, it is referring > simply to the media and the software which is used to decode the DVD. It > is not making a statement about the copyright issues of the DVD. If you > bought a word processor it would have the same legal language in the EULA, > but it wouldn't have anything to do with your ability to access and copy > electronic documents. Noted. It's a standard EULA , nothing special. It neither detracts from, nor adds to the "purchase of player conveys license to view" theory Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 00:27:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07549 for dvd-discuss-outgoing; Sat, 18 Mar 2000 00:27:17 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07546 for ; Sat, 18 Mar 2000 00:27:17 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 64B3F7708; Sat, 18 Mar 2000 00:41:11 -0600 (CST) Date: Sat, 18 Mar 2000 00:41:11 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000318004111.A9506@arh1176.urh.uiuc.edu> References: <20000317210448.34600.qmail@hotmail.com> <38D2A6A9.69EBA53A@sympatico.ca> <20000317150323.A1340@localhost> <38D2AE8F.613AB1C1@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <38D2AE8F.613AB1C1@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Mar 17, 2000 at 05:15:43PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 05:15:43PM -0500, Ian Hay wrote: > Paul Fenimore wrote: > > THE COURT: What would (a)(2) then be preventing? Would all trafficking > > in access devices then be legal? > > THE DEFENSE: No, your honour, of course not. (a)(2) would still be > applicable to the situations clearly envisaged by Congress in the > legislative history, i.e. protection against unauthorized access to > one-time-only transmissions of audiovisual or other works over the > internet. (See > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt for clear > evidence of such legislative intent.) An unlicensed access device could > be used in such circumstances to gain access to streaming media -without > paying- for such an internet transmission. Such a device would have no > other purpose but to evade due payment, and would therefore clearly > facilitate unauthorized access. It would thus clearly fall within the > definition of 'circumvention'. In the case of DeCSS, in stark contrase, > such a device is primarily used, and can only conceivably be used, do > access a work -after- due payment. Such a scenario may not have been > clearly contemplated in the congressional record, but the intent of > Congress was clearly not to prevent access by bona fide purchasers for > value of such audiovisual works. 1201(a)(2) would also be aplicable to media where access is *explicitly* permitted only on a "pay for play" basis. Divx is one example of this kind of media, and surely other technologies will be created in the future that operate using similar "authorization" methods. DVD is *not* this kind of media. The MPAA wants to regain control over what it has already given away. When a DVD is sold that is labled only "For Home Viewing", it implicitly grants "authority" to do any non-infringing access of that DVD. You cannot be bound to use a DVD player that is licensed by anyone, unless you sign (or tear open maybe) a valid license that says you do. Although some DVDs may have language to that affect on their packaging, many do not. DeCSS is a legal means of accessing the movie on any DVD without such a warning, and depending on a ruling of the validity of such "srink wrap" licenses, may be legal for use on other DVDs as well. DeCSS's purpose is *not* circumvention, it is decryption. This may or may not be the same thing, depending on who is doing it, and if they have the authority to do so. Because CSS encoded DVDs do not explicitly deny authority to access, the Court should rule that authority to access is implicitly granted at the time of sale. -- Steven Barker scbarker@uiuc.edu A good memory does not equal pale ink. From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 00:45:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09710 for dvd-discuss-outgoing; Sat, 18 Mar 2000 00:45:34 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA09707 for ; Sat, 18 Mar 2000 00:45:34 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id DAE677708; Sat, 18 Mar 2000 00:59:31 -0600 (CST) Date: Sat, 18 Mar 2000 00:59:31 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000318005931.B9506@arh1176.urh.uiuc.edu> References: <20000317212824.15161.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000317212824.15161.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Mar 17, 2000 at 01:28:24PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 17, 2000 at 01:28:24PM -0800, Bryan Taylor wrote: > Note also that the title key itself is not a copyrightable work, since > it involves no expression. Its short bit sequence is the unique way to > represent its functional nature. It should be regarded as an idea/fact. > Indeed, it is just a numeric constant. Thus the player key by itself > does not protect a copyrighted work and 1201 does not apply to > accessing the title key alone, even aside from the 1201(f) exception. This would be an interesting argument to fully flesh out. It has definate promise, but I'm not sure how we could get it to be accepted... Judge's response (perhaps after some coaching from the MPAA): So, DeCSS only makes unauthorized access of the disk key, using a player key possibly misappropriated from the Xing player, and this invalidates the charge under 1201 because the disk key is not copyrighted (or copyrightable). What then is the rest of the access? DeCSS clearly does decrypt copyrighted movies from the disk. It's key is definitively not licensed to it's makers. Even if accessing the disk key is legal, using it to decrypt the movie is not authorized unless it was gotten by a licensed player. How does DeCSS get authority? I hope sombody will jump in here with a sharp (and well referenced) counter- argument. -- Steven Barker scbarker@uiuc.edu A good memory does not equal pale ink. From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 01:16:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA12306 for dvd-discuss-outgoing; Sat, 18 Mar 2000 01:16:45 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA12288 for ; Sat, 18 Mar 2000 01:16:44 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 20BAA7708; Sat, 18 Mar 2000 01:30:42 -0600 (CST) Date: Sat, 18 Mar 2000 01:30:42 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Message-ID: <20000318013042.C9506@arh1176.urh.uiuc.edu> References: <54A50136B6CAD3118FBD00C00D00DDEF037075@intranet.mitswa.com.au> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF037075@intranet.mitswa.com.au>; from andrew.mcmeikan@mitswa.com.au on Sat, Mar 18, 2000 at 11:25:56AM +0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Mar 18, 2000 at 11:25:56AM +0800, McMeikan, Andrew wrote: > Congress did anticipate that the DMCA may be used as it is, have a look at > http://technocrat.net/949957090/index_html > here are some snipits I have randomly cut&pasted, so you may wish to check > context. I'm not sure how these directly contradict Kaplan's Ruling (which I disagree with for many other reasons). The quotations seem to be excluding generic hardware and software from being considered a "circumvention device". DeCSS strikes me as precisely the kind of "black box" they were describing, only in software (and not too black either, as it is open source). It's only purpose is to decrypt DVDs without the license that normal DVD players have. The thing to make an issue of is that _it_should_be_legal_anyway_. I thing that Congress has done exactly what they say they did not want to do, namely, create a "Pay for access" system backed by copyright. Despite the exceptions to 1201(a)(1) for things such as fair use (eg. making a personal copy of legally obtained video, or even an audio stream saved for later use (argueably)), the devices to do so are all banned by 1201(a)(2) without any exception. This is what is most unconstitutional about 1201. > My personal interest (apart from general right protection) is that I > currently produce car MP3 players, in the near future I would like to be > able to produce a car DVD player- without the fragile DVD drive, ie. decrypt > movie, copy to car by either removable drive or high speed network. > As such a product requires decrypting the video and I do not have the > resources or inclination to become an authorised player (my designs are > meant to be totaly open so it can be DIY), this point of law is holding up > my product. If you are wondering why it must be decrypted video in the car, > it is because the car player needs to be as simple as possible and just play > an MPEG regardless of purchased, home made, VCD/DVD, computer generated > animation. This is precisely the kind of fair use that is protected by the exemptions of 1201(a)(1) (I don't remember the paragraphs at the moment). The trouble is that 1201(a)(2) prevents you from distributing any device that does any circumvention of the access controls, even when the access controls do not allow fair use. > If any lawyers have comments on what I inted to do please advise!! My > current MP3 stuff is at http://www.opendesign.cx Well, I'm not a lawer, but I hope you can find a solution. I would suspect that the only way you could do that would either to wait for the law to change, or to get a license of some sort. Anyway, good luck. -- Steven Barker scbarker@uiuc.edu Windows: celebrating ten years of obsolescence From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 02:31:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA17710 for dvd-discuss-outgoing; Sat, 18 Mar 2000 02:31:29 -0500 Received: from localhost.localdomain (root@bur-jud-118-039.rh.uchicago.edu [128.135.118.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA17707 for ; Sat, 18 Mar 2000 02:31:28 -0500 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id CAA15890 for ; Sat, 18 Mar 2000 02:45:02 -0600 Date: Sat, 18 Mar 2000 02:45:02 -0600 (CST) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? In-Reply-To: <20000318004111.A9506@arh1176.urh.uiuc.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What about this scenario for a legal use of DeCSS - 1 - You legally purchase a DVD. 2 - You are (explicity || implicitly) granted access to the DVD contents in an MPAA-approved fashion. Now, from this we can conclude that you now have the right to view the contents of the DVD. so 3 - You view the DVD with the help of DeCSS. Up to this point, you probably have had to buy another DVD player, so this is not that cost-effective, but bear with me. Point I If you are not allowed to do with DeCSS what you are allowed to do with RandomDVDPlayer, then the distinction being made is : You must access our DVDs with our software. => CSS is being used to further illegal tying of two non-related products in violation of US v. Paramount (and the Sherman Anti-Trust Act). to cite Paramount (speaking of the practice of requiring movies to be booked togther) The District Court (66 F.Supp. 349) held it illegal for that reason and for the reason that it 'adds to the monopoly of a single copyrighted picture that of another copyrighted picture which must be taken and exhibited in order to secure the first.' That enlargement of the monopoly of the copyright was condemned below in reliance on the principle which forbids the owner of a patent to condition its use on the purchase or use of patented or unpatented materials. See Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 459, 626; Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 491, 404; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 665, 271. The court enjoined defendants from performing or entering into any license in which the right to exhibit one feature is conditioned upon the licensee's taking one or more other features. 11 [334 U.S. 131 , 158] We approve that restriction. The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. Emphasis mine. In Morton Salt Co (as reference in Paramount) It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant. I think that this principle, that the monopoly granted by Art I.8.8 in the Constitution may not be construed to give the holder additonal monopolies, is one that may be carried over to this case with some success. It is possible that as the DMCA was passed some 108 years after Sherman, that it would be taken as controlling. However, I think that there is ample evidence that the Congressional intent with the DMCA was not to overturn Sherman. Point II The above argument makes it seem that if authority is granted with the purchase of a licesned player, then there are 2 options 1 - use of DeCSS IF and ONLY IF you are in posession of a differnet, licesned player is legal under 1201(a)(1) implying that DeCSS has more than "limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title," making trafficking in DeCSS legal under 1201(a)(2) 2 - use of DeCSS is STILL illegal, implying 1 of 2 things (a) 17 USC 1201 overrules the Sherman anti-trust act and precedents cited above for the applicable cases. This is close to impossible. (b) The use of CSS to prevent non-licesned players for viewing DVDs is illegal tying under the precedents cited in Paramount and Morton. Point III By the logic above, unless you choose option 2(a) above, DeCSS is legal. Therefore, the MPAA et al will want to argue that authority is transfered at some other time. There are several options for the time of authority transfer - 1 - At the time of purchase of the DVD. We have seen earlier in this thread that this likely results in DeCSS being authorized to decrypt DVDs 2 - At the time of purchase of the player This is dealt with above (point II) Additionally, the language of the player EULA is clear that player purchase does not grant liscene to view. 3 - At the time of conjunction of the authorized player and DVD This means the time when the DVD is in the authorized player. There are several problems with this interpretation, which I outline below. [As there are only two objects, these seem like the only three options, but I may be wrong] Problems with 3 above (A) This encourages "pay-per-use." This idea was rejected explicitly in the Congressional debates on the DMCA. See the cite in the earlier message, and at http://technocrat.net/949957090/index_html (B) This implies that legal use of the DVD is limited to what may be done with a licesned DVD player. This is counter to the language of the statue. First, this would substantially impact fair use, which the statue state that it does not. Second, this would make moot the certification of the LOC, as they would be required to certify every use of DVD other than with an authorized player. (C) This STILL runs afoul of illegal tying. For obvious reasons, if the authority is only granted at time of playing in a liscened player, then the use of a particular, unrelated product is what seperates legal from illegal use, violating Paramount and Morton again. This leaves us with option 2(a) and 2(b) as per point II. Conclusion This leaves us with the following options - (1) DeCSS is legal. (2) The DMCA overturns Sherman et al. (3) Authority is granted at conjunction, and he use of CSS is illegal tying (and has other problems as per III.3.A,B). (4) Authority is granted at another stage that I have missed. (5) Authority is granted at DVD purchase, and all our other arguments mysteriously vanish. (6) Authority is granted at player purchase, and CSS is illegal tying. I like those options. sam th sytobinh@uchicago.edu http://bur-jud-118-039.rh.uchicago.edu From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 05:49:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA29925 for dvd-discuss-outgoing; Sat, 18 Mar 2000 05:49:42 -0500 Received: from tisch.mail.mindspring.net (tisch.mail.mindspring.net [207.69.200.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA29922 for ; Sat, 18 Mar 2000 05:49:40 -0500 Received: from ms581801 (pool-209-138-19-239.cmbr.grid.net [209.138.19.239]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id HAA06972 for ; Sat, 18 Mar 2000 07:03:08 -0500 (EST) Message-ID: <006801bf90d1$e0cd9fc0$ef138ad1@ms581801> From: "Ernest Miller" To: Subject: [dvd-discuss] Symposium on DMCA at Yale Law School on April 25th Date: Sat, 18 Mar 2000 07:02:46 -0500 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0065_01BF90A7.F71D6460" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format. ------=_NextPart_000_0065_01BF90A7.F71D6460 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable The Yale Law School is co-sponsoring a one-day symposium on the Digital = Millennium Copyright Act on April 25th at Yale University. Morning Panel: Legal Analysis Moderator: Mike Godwin, EFF Panelists: Yochai Benkler, NYU School of Law David Post, Temple Univ. School of Law Robin Gross, EFF TBD Afternoon Panel: Business Perspectives on the DMCA Moderator: Stu Feldman, IBM Watson Labs Panelists: TBD Evening Panel: The DMCA in Action Moderator: Carl Kaplan, Cyberlaw Columnist for the NYTimes Panelists: Bob Hildeman, CEO Streambox Robin Gross, EFF Gregory Goeckner, VP/Deputy General Counsel MPAA TBD Jeraimee Hughes, aka a.sleep@ct2600.org, the CT defendant will also be = attending the symposium. All participants on this list are cordially invited to attend. For = further information please email: ernest.miller@yale.edu ------=_NextPart_000_0065_01BF90A7.F71D6460 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

The Yale Law School is co-sponsoring a = one-day=20 symposium on the Digital Millennium Copyright Act on April 25th at Yale=20 University.
 
Morning Panel: Legal = Analysis
 
Moderator:
Mike Godwin, EFF
Panelists:
Yochai Benkler, NYU School of = Law
David Post, Temple Univ. School of = Law
Robin Gross, EFF
TBD
 
Afternoon Panel: Business Perspectives = on the=20 DMCA
 
Moderator:
Stu Feldman, IBM Watson = Labs
Panelists:
TBD
 
Evening Panel: The DMCA in = Action
 
Moderator:
Carl Kaplan, Cyberlaw Columnist for the = NYTimes
Panelists:
Bob Hildeman, CEO = Streambox
Robin Gross, EFF
Gregory Goeckner, VP/Deputy General = Counsel=20 MPAA
TBD
 
Jeraimee Hughes, aka a.sleep@ct2600.org, the CT = defendant will=20 also be attending the symposium.
 
All participants on this list are = cordially invited=20 to attend.  For further information please email:=20 ernest.miller@yale.edu
------=_NextPart_000_0065_01BF90A7.F71D6460-- From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 07:31:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA06656 for dvd-discuss-outgoing; Sat, 18 Mar 2000 07:31:37 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA06653 for ; Sat, 18 Mar 2000 07:31:36 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id IAA16833 for ; Sat, 18 Mar 2000 08:45:01 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA07547; Sat, 18 Mar 2000 08:45:00 -0500 (EST) Date: Sat, 18 Mar 2000 08:45:00 -0500 (EST) Message-Id: <200003181345.IAA07547@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Circumvention or Access? In-Reply-To: <000001bf9085$85297500$df7945ce@bugbug.WinNATDomain> References: <20000317165840.A1763@localhost> <000001bf9085$85297500$df7945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky@suba.com writes: > I have one thing to add, not by way of argument but of strategy. It would be > more than worthwhile to develop an argument that addressed the possibility > of the MPAA's claiming that authority did indeed stem from the player > somehow. While, in light of the argument presented in this string, such a > claim would seem absurd, let's say for argument that it isn't. If we had an > argument that convincingly showed that authority from purchase of player = > tying, taking a cue from an earlier post of Bryan's, then the MPAA would be > caught on the horns of a dilemma. There would simply be no way out. Hmmm... two such arguments have already been mentioned in passing: [1] The arrangement would be illegal tying, running afoul of the "block licensing" ban in U.S. v. Paramount. [2] The Xing player license itself specifically states that it does not convey authority from copyright holders: 7. All video, audio and other content accessed through the Prodcut is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content. (BTW, this seems to acknowledge the possibility that the content is *not* covered by applicable copyright law, in which case circumvention would be a non-issue). The complete license, BTW, is in the last few pages of an exhibit in the California case: http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000114-pi-eddy-dec/index.html rst From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 07:48:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA07511 for dvd-discuss-outgoing; Sat, 18 Mar 2000 07:48:47 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA07508 for ; Sat, 18 Mar 2000 07:48:47 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id JAA17677 for ; Sat, 18 Mar 2000 09:02:16 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA07562; Sat, 18 Mar 2000 09:02:16 -0500 (EST) Date: Sat, 18 Mar 2000 09:02:16 -0500 (EST) Message-Id: <200003181402.JAA07562@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? In-Reply-To: <20000318005931.B9506@arh1176.urh.uiuc.edu> References: <20000317212824.15161.qmail@web501.mail.yahoo.com> <20000318005931.B9506@arh1176.urh.uiuc.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: > On Fri, Mar 17, 2000 at 01:28:24PM -0800, Bryan Taylor wrote: > > > > Note also that the title key itself is not a copyrightable work, since > > it involves no expression. Its short bit sequence is the unique way to > > represent its functional nature. It should be regarded as an idea/fact. > > Indeed, it is just a numeric constant. Thus the player key by itself > > does not protect a copyrighted work and 1201 does not apply to > > accessing the title key alone, even aside from the 1201(f) exception. > > This would be an interesting argument to fully flesh out. It has definate > promise, but I'm not sure how we could get it to be accepted... Perhaps by pointing to Sega v. Accolade and Nintendo v. Atari, two cases that came up in the reverse engineering thread --- in both these cases, the courts held that short bit strings whose sole function was access control were purely functional in nature, and that their use to gain access did not constitute infringement (without which circumvention is a non-issue). Access control was not the main issue in the Sega case, but it did come up --- Sega claimed that Accolade's use of the access key for their "TMSS" system was both trademark and copyright infringement, and the court rejected both claims, dealing with trademark first. (The trademark argument was that the player displayed a splash screen stating that games with the access control key were produced under license from Sega, and Accolade's weren't --- the court acknowledged that this display was misleading, but ruled that since Sega's software produced the display, it was their own fault, and not Accolade's). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 08:14:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA09565 for dvd-discuss-outgoing; Sat, 18 Mar 2000 08:14:49 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA09544 for ; Sat, 18 Mar 2000 08:14:48 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.17) with ESMTP id JAA18782 for ; Sat, 18 Mar 2000 09:28:18 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA07580; Sat, 18 Mar 2000 09:28:17 -0500 (EST) Date: Sat, 18 Mar 2000 09:28:17 -0500 (EST) Message-Id: <200003181428.JAA07580@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? In-Reply-To: <200003181402.JAA07562@soggy-fibers.ai.mit.edu> References: <20000317212824.15161.qmail@web501.mail.yahoo.com> <20000318005931.B9506@arh1176.urh.uiuc.edu> <200003181402.JAA07562@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > Perhaps by pointing to Sega v. Accolade and Nintendo v. Atari... Ooops... that's Atari v. Nintendo, or more formally Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 1992). In this one, I should have noted, the court actually held against Atari (which was breaking Nintendo's access control scheme), but in order to do it, they held that Atari had copied not only the access control key itself, but the code that generated it. So this case might actually be useful to the DVDCCA in the California case if they were alleging that DeCSS was infringing Xing's copyright --- but I believe they're pursuing that as a straight trade secret action. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 09:15:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14680 for dvd-discuss-outgoing; Sat, 18 Mar 2000 09:15:11 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA14677 for ; Sat, 18 Mar 2000 09:15:10 -0500 Received: from sympatico.ca ([206.172.192.43]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000318152809.CLAZ13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Sat, 18 Mar 2000 10:28:09 -0500 Message-ID: <38D3A275.AF89A660@sympatico.ca> Date: Sat, 18 Mar 2000 10:36:21 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ATI EULA References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A Erwin wrote: > > Someone asked for examples of EULAs for various DVD players. Here is the > agreement for the ATI DVD player (v 3.0). It appears to be pretty > standard-- nothing specifically about DVDs. Items 5 and 9 pretty much rule > out the "with purchase of player comes license to view" theory. ... > 5. No Other License. No rights or licenses are granted under this > License, expressly or by implication, with respect to any proprietary > information or patent, copyright, trade secret or other intellectual > property right except as expressly provided in this License. That is gorgeous. It's exactly what I was looking for. Thanks. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 09:21:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA15296 for dvd-discuss-outgoing; Sat, 18 Mar 2000 09:21:17 -0500 Received: from tomts1-srv.bellnexxia.net (tomts1.bellnexxia.net [209.226.175.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA15293 for ; Sat, 18 Mar 2000 09:21:16 -0500 Received: from sympatico.ca ([206.172.192.43]) by tomts1-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000318153415.CMEC13123.tomts1-srv.bellnexxia.net@sympatico.ca> for ; Sat, 18 Mar 2000 10:34:15 -0500 Message-ID: <38D3A3E3.A6A7A22C@sympatico.ca> Date: Sat, 18 Mar 2000 10:42:27 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Symposium on DMCA at Yale Law School on April 25th References: <006801bf90d1$e0cd9fc0$ef138ad1@ms581801> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sounds really interesting. I'd actually be motivated to submit a paper, though the chances of me being able to attend personally are about 0. (My Estates exam is on that day.) I. > Ernest Miller wrote: > > The Yale Law School is co-sponsoring a one-day symposium on the > Digital Millennium Copyright Act on April 25th at Yale University. > > Morning Panel: Legal Analysis > > Moderator: > Mike Godwin, EFF > Panelists: > Yochai Benkler, NYU School of Law > David Post, Temple Univ. School of Law > Robin Gross, EFF > TBD > > Afternoon Panel: Business Perspectives on the DMCA > > Moderator: > Stu Feldman, IBM Watson Labs > Panelists: > TBD > > Evening Panel: The DMCA in Action > > Moderator: > Carl Kaplan, Cyberlaw Columnist for the NYTimes > Panelists: > Bob Hildeman, CEO Streambox > Robin Gross, EFF > Gregory Goeckner, VP/Deputy General Counsel MPAA > TBD > > Jeraimee Hughes, aka a.sleep@ct2600.org, the CT defendant will also be > attending the symposium. > > All participants on this list are cordially invited to attend. For > further information please email: ernest.miller@yale.edu -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 10:24:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25819 for dvd-discuss-outgoing; Sat, 18 Mar 2000 10:24:05 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA25816 for ; Sat, 18 Mar 2000 10:24:04 -0500 Received: from 25915 (10.7.252.64.snet.net [64.252.7.10]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id LAA16091 for ; Sat, 18 Mar 2000 11:37:33 -0500 (EST) Message-ID: <008301bf90f8$69083d20$d559fea9@25915> From: "Ernest Miller" To: References: <006801bf90d1$e0cd9fc0$ef138ad1@ms581801> <38D3A3E3.A6A7A22C@sympatico.ca> Subject: Re: [dvd-discuss] Symposium on DMCA at Yale Law School on April 25th Date: Sat, 18 Mar 2000 11:38:37 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If you have a paper to submit, please do so. You can submit it to: robert.dunne@yale.edu Prof. Dunne is a lawyer by training and a professor in the computer science department. He is the organizer of the conference. Ernie ----- Original Message ----- From: Ian Hay To: Sent: Saturday, March 18, 2000 10:42 AM Subject: Re: [dvd-discuss] Symposium on DMCA at Yale Law School on April 25th > Sounds really interesting. I'd actually be motivated to submit a paper, > though the chances of me being able to attend personally are about 0. > (My Estates exam is on that day.) > > I. > > > Ernest Miller wrote: > > > > The Yale Law School is co-sponsoring a one-day symposium on the > > Digital Millennium Copyright Act on April 25th at Yale University. > > > > Morning Panel: Legal Analysis > > > > Moderator: > > Mike Godwin, EFF > > Panelists: > > Yochai Benkler, NYU School of Law > > David Post, Temple Univ. School of Law > > Robin Gross, EFF > > TBD > > > > Afternoon Panel: Business Perspectives on the DMCA > > > > Moderator: > > Stu Feldman, IBM Watson Labs > > Panelists: > > TBD > > > > Evening Panel: The DMCA in Action > > > > Moderator: > > Carl Kaplan, Cyberlaw Columnist for the NYTimes > > Panelists: > > Bob Hildeman, CEO Streambox > > Robin Gross, EFF > > Gregory Goeckner, VP/Deputy General Counsel MPAA > > TBD > > > > Jeraimee Hughes, aka a.sleep@ct2600.org, the CT defendant will also be > > attending the symposium. > > > > All participants on this list are cordially invited to attend. For > > further information please email: ernest.miller@yale.edu > > -- > ____ > | | Ian R. Hay > |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 13:41:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19480 for dvd-discuss-outgoing; Sat, 18 Mar 2000 13:41:25 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA19477 for ; Sat, 18 Mar 2000 13:41:24 -0500 Received: from bugbug (max01-40.suba.com [206.69.121.232]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id NAA21318 for ; Sat, 18 Mar 2000 13:54:49 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] FWD from sparky: framing the argument Date: Sat, 18 Mar 2000 13:53:51 -0600 Message-ID: <000001bf9113$af1bbce0$e87945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Importance: Normal In-Reply-To: <4.2.2.20000308140343.00b69eb0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a more developed version of the original short frame post I made a little while ago. A couple of things: I am hoping the advantage of this frame will be that arguers will be able more easily to fit arguments and citations into relation with each other. Also, it may be easier to see how *contrary* arguments could arise or be employed. I don't know if the frame is really pertinent to how a lawyer would argue in court. Disadvantage: I put this together a week ago, and did not post it right away for various reasons.. but even though it has only been a week, some of the summarized points may seem insufficient now. In particular, Ian's argument in the "circumvention or access" string about implicit granting of authority completely changes my understanding of the authority issue, which I had thought would be a no-winner, basically. (While I made some minor changes to this frame for this post, I have left my original (limited) understanding of the authority question as was, simply because it characterizes what I guess would be the MPAA's approach to it. If they found a good way to argue that approach, Ian's argument might have more of a fight on its hands. Just thinking worst-case-scenario.) While Ian's argument is powerful, I am erring on the side of caution by approaching a way of arguing essentially the same approach as Ian's but without going into when the authority is granted. The authority point is major but *just in case* the MPAA lawyers come up with a devious counterargument (IANAL so this seems at least possible to me), the frame gives the skeleton of a more circuitous way to say that authority should not matter (with bought media) because even without it, the access control shortcircuits fair use. please excuse the length of this post. sparky ******************** FRAME OF ARGUMENT The defendants are not guilty of trafficking in access control circumvention tech. Q: Why? A: They are not guilty because the tech in question is not to be construed as intended solely and obviously for the act of infringing copyright through access control circumvention; that is, it can be used in non-infringing uses. Q: How is this proved? A: This is basically to be proved by showing that the tech in question only circumvents access control on store bought media. (This is in contrast to tech which may circumvent access control on streaming media, broadcast, or other forms of delivery where the copyrighted work is not sold fixed on media ("black boxes").) 1) In the latter, any active access to the copyrighted work is strictly prohibited. Thus any tech which circumvents access control put in place to restrict active access to these formats of media is clearly and obviously against the law. ++++++++++++++++++++++++++++++++++++ [SUPPORT NEEDED - reference to rulings re broadcast or streaming media? no, not necessary; rely solely on the fact that for works sold fixed on media fair use law applies. No need even to bring broadcast/streaming media into argument, except as foil. ************************************ 2) However, with regard to store bought media, it has been determined that considerations other than the copyright holder's come into play once the work has been sold. These considerations are free speech and fair use considerations, which determine that there are uses to which works fixed in media may be put *without* the authority of the copyright holder. (It is important to emphasize that there is no [explicit] granting of the "authority" mentioned in 1201, but that this is all right because to fairly use there does not have to be any.) These uses are by definition possible and allowed with works fixed on media and sold. Circumvention of access control for any uses which are non-infringing (permitted fair uses) does not require the permission of the copyright holder, because the uses do not. ++++++++++++++++++++++++++++++++++++ THOUGH IT IS NOT NECESSARY THAT THERE BE AN ACTUAL ACT OF INFRINGEMENT, WE MUST STILL UNDERSTAND 1201 AS REFERRING TO A POSSIBLE ACT OF INFRINGEMENT (act "which constitutes infringement under this title"). What this means, however, is that the device which may be used for access control circumvention must only be usable in an act which is always infringing - in other words, that it is impossible to use the access control circumvention device without making an infringing use of the work. Were DeCSS a "black box", this would be the case. Since it works on store bought media (and especially since it works ONLY on such media), it is possible to use it for uses which are non-infringing. [17 USC 107 requires case-by-case determination whether a use is fair SEE: U.S. Supreme Court HARPER & ROW v. NATION ENTERPRISES 471 U.S. 539 (1985) http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=471&pa ge=539 (courtesy Bryan Taylor, Fair Use is not statutory 1) "Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered." "Perhaps because the fair use doctrine was predicated on the author's implied consent to 'reasonable and customary' use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges of copying from an author's as yet unpublished works. Under common-law copyright, 'the property of the author . . . in his intellectual creation [was] absolute until he voluntarily part[ed] with the same.'" [REFERENCE TO KAPLAN'S OWN WORDS AT INJUNCTION HEARING Kaplan states that there need be no actual act of infringement for a plaintiff to sue under 1201. True. BUT this necessarily implies that there must be at least a POSSIBLE act of infringement. We must then make Kaplan see that not just a possible act, but ONLY acts of infringement with DeCSS can be possible - that infringement must be the only possibility, must be necessary, in any act using DeCSS - for guilt to be assigned under 1201(a)(2). [REFERENCE TO SUPPORT SHOWING DeCSS ONLY WORKS ON BOUGHT MEDIA /IS NOT INTENDED FOR INFRINGING ACTS (HOME USE) TECH ARGUMENTS HERE [Incidentally, if DeCSS can create a copy of a DVD which works (can be watched like the original DVD), that is legal because fair use allows copying for backup purposes. If DeCSS cannot create a copy of a DVD which works, then there is no potential infringement because the copies are useless. [DeCSS INTENDED AS TOOL TO CREATE LINUX DVD PLAYER CURRENTLY HYPOTHETICAL: Johansen wrote DeCSS, but based on Fawcus' css-auth code. Fawcus' code was a complete rewriting of Johansen's original DeCSS code - that is, completely original. There is no doubt that Fawcus' intent of the code was a non-infringing use (new Linux DVD player). Therefore, "DeCSS" as a decryptor, may not substantially differ from css-auth. (See LiViD archives, esp. October.) MPAA will question based on 1) DeCSS has its own "wrapper" 2) DeCSS is distributed apart from other LiViD tools. response to 1): this only means that DeCSS is standalone. standalone does not = infringing use. For this to be persuasive, standalone must have reasonable purpose. Prima facie, there is a reason for DeCSS to be separate from other tools as other tools may or may not have applicability to specific DVD program/movies (Dana claimed that each was tailor-made for each movie). DeCSS on the other hand is always applicable because it provides access to the DVD program for all other tools. response to 2): method of distribution is typical of open source program. Furthermore, distribution by itself is circumstantial and completely neutral re: its infringing/non-infringing use. Could we bring lack of harm into it? Might be dependent on there being an actual act of infringement. ************************************ 3) Though the wording of 1201 appears to make a flat prohibition to access control circumvention, in fact it is a mistake to interpret it thusly. There are many things, such as for example certain passages within the law, or the intent of the law's authors registered in official statements, which clearly indicate that 1201 is to be interpreted with full respect for the venerable history of fair use and free speech which has been developed in our courts over hundreds of years of federal court rulings. Therefore we are not to construe that the considerations of the preceeding paragraph (2) do not apply in cases brought to court under 1201. ++++++++++++++++++++++++++++++++++++ IT IS AT THIS POINT IN THE DEFENSE THAT 1201 CAN BE DIRECTLY ATTACKED. HERE IS WHERE WE BRING OUT ALL THE HORRIBLE SCENARIOS THAT CAN HAPPEN IF 1201 IS INTERPRETED AS A FLAT PROHIBITION. IF WE LOSE, WE WANT TO GO DOWN STATING THE SHORTCOMINGS OF 1201; THAT WAY THE APPEAL WILL HAVE THE VIRTUE OF BEING OBVIOUSLY FOR ALL PERSONS' FAIR USE RIGHTS, FREE SPEECH, ETC. [REFERENCE TO RIGHTS UPHELD BY FAIR USE to copy for archiving purposes to access? to alter a work's format to reverse engineer - note that this is a fair use right DIFFERENT from the specific RE exception mentioned in 1201 -string: 1st Amendment limits to copyright 6 1201(a)(2) CAN'T forbid decryptors/decryption, as Congress is FORBIDDEN to do this [RIGHT TO REVERSE ENGINEER COVERED UNDER FAIR USE -1) Connectix vs. Sony --- Connectix wrote a Macintosh emulator for the Sony Playstation, based on reverse engineering. Sony got a preliminary injunction blocking sales of the emulator, but on Feb. 10th of this year, the injunction was reversed by the Ninth Circuit Court of Appeals; their ruling is at: http://www.ce9.uscourts.gov/web/newopinions.nsf/f606ac175e010d64882566eb0065 8118/06d1e0893fdee11688256881006296b8?OpenDocument This ruling is based on an earlier ruling in Sega v. Accolade, 1992, which again ruled that reverse engineering is protected fair use. That's Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1993); I believe it's in findlaw.com at See http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/9th /2/977/1510.html (courtesy Robert Thau, reverse engineering precedents 1) -"The fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs ... consistent with the 'ultimate aim [of the Copyright Act], to stimulate artistic creativity for the general public good.'" Sony v. Connectix at 1711, (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984). (courtesy Wendy Seltzer, Reverse-engineering precedents) [-string: dvd performance right 13 "Many issues that should be clarified in the law [1201] that aren't: fair use, the limitation on copyright length, termination conditions, how to handle shared access control systems when the desires of the copyright holders diverge." Bryan Taylor. -rights of copyright holder only infringed by infringing explicit exclusive rights granted in 17 USC 106: DANJAQ, S.A. V. MGM/UA COMMUNS., CO., 773 F. Supp. 194 (C.D. CA 1991) http://www.jurisline.com (courtesy Bryan Taylor, dvd performance right 11) [REFERENCE TO RIGHTS UPHELD BY RIGHT TO READ AND FREE SPEECH [REFERENCE TO LANGUAGE OF 1201 WHICH ILLUSTRATES NOT-FLAT-PROHIBITION -circles 21 : 7 mentions of "which constitute infringement under this title" in 1201. Paul Fenimore? exceptions made to 1201(a)(1) & (2) for actions not constituting infringement under this title. That is, circumvention of access control is ok for these exceptions when the use for which the circumvention is done is not infringing use. Other circumventions of access control should also be interpreted this way - as ok where there is no infringement. [REFERENCE TO BLILEY http://www.hrrc.org/DMCA-leg-hist.html paracopyright? - (1201 should not override fair use (copyright, as opp. to paracopyr.) where it applies - in our case, fair use for purchased media) precedents showing relation of commercial to copyright jurisdiction [REFERENCE TO TAUZIN http://www.hrrc.org/DMCA-leg-hist.html -1201(a)(2) only meant to pertain to "black boxes"? [OF INTEREST: FAQ 2.2.3 intention of DMCA to REGULATE ELECTRONIC COMMERCE - such as broadcast, streaming media, etc. NOT WORKS IN FIXED MEDIA? ************************************ CONCLUSION As the tech in question does not have an obvious and clear use only for piracy, which is clear from: the nature of the tech, the nature of the works whose access control measures it circumvents, and the current state of free speech and fair use legislation, it is just that the defendants in this case be completely acquitted of any wrongdoing. ____________________________________________________________________________ __ POSTSCRIPT - 1) ARGUMENTS THAT WILL NOT WORK OR WILL NOT BE AS FORCEFUL a) Everyone's favorite Reverse Engineering - while the breaking of CSS was reverse engineering, 1201 has a reverse engineering exception for one sort only: where it is for the purpose of making a software program operate with a program protected by access control. The reverse engineering which created DeCSS does not fit this profile. However, reverse engineering is allowed under fair use where it does not infringe copyright. The RE which created DeCSS should fall into this category. The only way to bring this point to bear, however, is to argue the above. ( "b" I think is actually wrong now, or may be, until the hypothetical nature of DeCSS creation is cleared up.) b) It's for Linux! - immaterial. The ability/right to create a competing DVD player does not give the right to break the encryption. Furthermore, proving this in court will be difficult due to the nature of the documentation of DeCSS's creation. For example, one avenue which was not pursued by the creators was to contact the MPAA or DVDCCA to see if they would work with the creators of a Linux player. c) It doesn't infringe copyright! - as the judge has opined, the lack of an actual act of infringement is immaterial. However, the lack of a potential (really, necessary) act of infringement is NOT. d) "authority" to access work given through sale. MPAA: "Yeronner, that's completely, absolutely, and in many udder ways totally absurd. Givin da buyer permission to access ain't da same as givin da buyer leave to circumvent our access control." Kaplan: "They're right, Good Guys, it doesn't make much sense to argue that they put their access control on an item through the sale of which permission was given to circumvent that same access control. Come back tomorrow with a better defense. In the meantime, GUILTY!" Gavel: "Bang!" :) 2) ARGUMENTS THAT THE MPAA WILL USE a) Not Reverse Engineering. They can have it. b) Not About Linux. They can have it. c) Immaterial that copyright not explicitly infringed. Have it, keep it! d) Positive proof side: Their case: 1) DeCSS circumvents CSS. 2) According to 1201, this can only happen with the MPAA's permission ("authority"). 3) Proof that there was no permission. In this way their position depends on NOT bringing fair use considerations into the case. They will argue that fair use is immaterial, or in general argue for a reading of 1201 as a flat prohibition of circumvention of access control. We argue that it is not to be read this way, and cite the authors' official statements, copyright precedent, decryption/encryption precedent, reverse engineering precedent, free speech precedent, until we are blue in the face. 3) EXTENDED QUOTES FROM RELATED CASES ******************** From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 19:35:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08324 for dvd-discuss-outgoing; Sat, 18 Mar 2000 19:35:43 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA08321 for ; Sat, 18 Mar 2000 19:35:42 -0500 Received: (qmail 29718 invoked from network); 19 Mar 2000 01:45:35 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 19 Mar 2000 01:45:35 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id RAA11526; Sat, 18 Mar 2000 17:49:39 -0800 Date: Sat, 18 Mar 2000 17:49:39 -0800 Message-Id: <200003190149.RAA11526@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >If one believes the "player key" == "with authority" theory, then >it seems like all of the contracts involved will have to address the >issue of transferring authority. In the case of the EULA, this would >be peculiar because the systems that can do CSS at the authoring >stage are expensive. No one is going to buy one of these things to >do a single DVD video. Moreover it likely to be a production studio >that buys these things. If they rent their equipment, then the >copyright holder will not be a signatory to the EULA. > >One more layer of contract? There are going to be several links between >the owner of the player key and any of the copyright holders. I wonder >if one is weak. All I can say is those are the most bizarre terms I have heard. I mean it's saying I'm authorized even if it's a copy and I didn't pay for it but i have the key. >Paul Fenimore Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Mar 18 23:22:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31412 for dvd-discuss-outgoing; Sat, 18 Mar 2000 23:22:57 -0500 Received: from web501.mail.yahoo.com (web501.mail.yahoo.com [128.11.68.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA31409 for ; Sat, 18 Mar 2000 23:22:56 -0500 Received: (qmail 1667 invoked by uid 60001); 19 Mar 2000 05:36:27 -0000 Message-ID: <20000319053627.1666.qmail@web501.mail.yahoo.com> Received: from [24.28.154.65] by web501.mail.yahoo.com; Sat, 18 Mar 2000 21:36:27 PST Date: Sat, 18 Mar 2000 21:36:27 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Dissassembly licence clause unenforcable To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I found an example where the 5th Circuit Court of Appeals held unenforceable a software licence agreement supported by Louisiana state law that banned decompilation or disassembly used for reverse engineering of the software. Their reasoning was that the Louisiana law in it's implementation conflicted with federal copyright law. ________________________ Vault Corporation vs. Quaid Software Limited United States Court Of Appeals For The Fifth Circuit 847 F.2d 255 "The provision in Louisiana's License Act, which permits a software producer to prohibit the adaptation of its licensed computer program by decompilation or disassembly, conflicts with the rights of computer program owners under § 117 and clearly "touches upon an area" of federal copyright law. For this reason, and the reasons set forth by the district court, we hold that at least this provision of Louisiana's License Act is preempted by federal law, and thus that the restriction in Vault's license agreement against decompilation or disassembly is unenforceable." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 19 02:16:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA07519 for dvd-discuss-outgoing; Sun, 19 Mar 2000 02:16:00 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA07515 for ; Sun, 19 Mar 2000 02:15:59 -0500 Received: (qmail 28396 invoked by uid 60001); 19 Mar 2000 08:29:31 -0000 Message-ID: <20000319082931.28395.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Sun, 19 Mar 2000 00:29:31 PST Date: Sun, 19 Mar 2000 00:29:31 -0800 (PST) From: Bryan Taylor Subject: RE: [dvd-discuss] CNN v VMS : The Right to Access To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've found another case that supports the so-called "right to access" in the context of computer program object code. Like CNN v VMS, it seems to derive this directly from the Constitutional purpose of the Copyright Clause. I think this case can be used to build a foundation for a concept of "fair access", especially after first sale. This case in general, sites Sega heavily, in upholding reverse engineering as not a violation of copyright. I'll send Wendy a copy of this case when I can, but until then use www.jurisline.com to get it. _________________ DSC COMMUNS. CORP. V. PULSE COMMUNS. INC. 976 F. Supp. 359 (E.D. VA 1997) "The fact that computer programs are distributed for public use in object code form often precludes public access to the ideas and functional concepts contained in those programs, and thus confers on the copyright owner a de facto monopoly over those ideas and functional concepts. That result defeats the fundamental purpose of the Copyright Act to encourage the production of original works by protection the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on." _________________ In light of the reasoning here, I suggest we may re-examine 1201(f) from the point of view that an overly narrow scope for the exception is unconstitutional. If 1201(f) is overly narrow, then 1201(a) is overly broad. The same thing could apply to 1201(g) also. I think we've accepted the narrowness of the exceptions without questioning them, and this may be a fruitful avenue of attack. For example, any reverse engineering and/or circumvention that seeks to access ideas, facts, and functional concepts must be allowed, or the purpose of copyright (to incent authors to provide access to their ideas) is subverted. 1201(f) restrictions to "part of the program" and "solely for interoperability" should be questioned in this light. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 19 08:09:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30253 for dvd-discuss-outgoing; Sun, 19 Mar 2000 08:09:43 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA30250 for ; Sun, 19 Mar 2000 08:09:42 -0500 Received: (qmail 15116 invoked from network); 19 Mar 2000 14:19:34 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 19 Mar 2000 14:19:34 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id GAA08519; Sun, 19 Mar 2000 06:23:36 -0800 Date: Sun, 19 Mar 2000 06:23:36 -0800 Message-Id: <200003191423.GAA08519@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention or Access? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >On Fri, Mar 17, 2000 at 02:04:09PM -0500, Joshua Daub wrote: >[ ... ] >> I just re-read Kaplan's opinion for the preliminary injunction. I think it >> gives us a good indication where/when/how Judge Kaplan believes >> authorization to take place. And it is not good news: >> >> 2. DMCA Violation >> >> [. . .] >> >> "Here, it is perfectly clear that CSS is a technological measure that >> effectively controls access to plaintiffs' copyrighted movies because it >> requires the application of information or a process, with the authority of >> the copyright owner, to gain access to those works. Indeed, defendants >> conceded in their memorandum that one cannot in the ordinary course gain >> access to the copyrighted works on plaintiffs' DVDs without a "player key'' >> issued by the DVDCCA that permits unscrambling the contents of the disks. It >> is undisputed also that DeCSS defeats CSS and decrypts copyrighted works >> without the authority of the copyright owners." >[ ... ] > >Would a copyright owner ever authorize access to an infringing copy >of their work? When illicit industrial duplication is done, a media-level >bit-for-bit copy of the DVD is produced. The player device only knows >about the bit-pattern on the disk, so it can't tell infringing from >non-infringing. This isn't an argument against the validity of § 1201(a), >or (b). It is an argument against saying the authority comes with the >player key. > >Why would any sane copyright holder agree to a system that can't >possibly detect illegal duplicates, and then grant authority >based on that failure to distinguish? > >If there is an exact correspondence between authorized duplicates and >disks one is authorized to play, this points towards the media proper >as the authority to play. > >Counter-arguments? > It's the title key that counts. The player key protects the title key. Having the title key gives you authority. The player key just makes reading on a homebrewed incomplete DVD player impossible. I think all that this does is prove that the MPAA didn't understand the concept of bit for bit, which is something most people still don't get. >Paul Fenimore Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 19 08:35:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA32215 for dvd-discuss-outgoing; Sun, 19 Mar 2000 08:35:30 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA32212 for ; Sun, 19 Mar 2000 08:35:29 -0500 Received: (qmail 15897 invoked from network); 19 Mar 2000 14:45:25 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 19 Mar 2000 14:45:25 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id GAA11124; Sun, 19 Mar 2000 06:49:27 -0800 Date: Sun, 19 Mar 2000 06:49:27 -0800 Message-Id: <200003191449.GAA11124@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: [f-cpu] Re: f-cpu arch: permute, SIMD Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Albert Maxx Abramson wrote: >jonathan vaughn wrote: >original article:http://www.egroups.com/group/f-cpu/?start=4564 >> At 12:55 AM 3/18/00 -0800, Albert "Maxx" Abramson wrote: >> *snip* >> IIRC int div is something you have to loop through, sort of an >accelerated >> software divide. > >I have to plead ignorance. I have read about many techniques for >performing division, but I don't think I remember IIRC. > >> >In all practicality, the way f-cpu handles sheduling right now seems >> >shamefully complex. If we remove int*/ from the first >implementation, >> >and if we design the dcache for two cycle latency (which matches the >> >64-bit add), we can get away with a nifty little fixed two-stage >> >execution pipe. While this seems crude for shift, logic, and >> >increment/compare units, their results are still made available >through >> >feedforwarding (simpler crossbar, without its own, separate stage) to >> >the very next instruction. This may sound reminiscent of MIPS and >> >Alpha int pipelines... because it is! Fixed latency execution leads >to >> >the simplest hardware scheduling. Even int* can be made to fit this >> >two-cycle latency scheme with enough hardware, but that's not >something >> >we should be dealing with for a prototype--not in my mind. >> >> um.. the scheduler just feeds instructions, at most one per cycle, to >> the units. it looks like one-cycle latency from the outside, in a way, >> because the next instruction executes on the next cycle, even though >> the first isn't completed for some cycles. I don't see how it's so >> complex, especially compared to other processors (but feel free to >> englighten me).. > >One critical difference between CISC and RISC is that the latter uses >pipelined operations of fixed latency for simpler scheduling. It's one >of those things that may not matter much, now, but superscalar issue >becomes much harder to do if some instructions take longer than others. > MIPS is more efficient as an architecture than PowerPC because it >fixes its pipeline length to five stages. One-cyle ALU instructions >are able to feed forward results, even though they won't write back >until the load-store have had a shot at memory access. PowerPC, like >CISC designs will simply grab longer latency instructions earlier (if >possible, that's the difference). You always try to write back at the >same time in order to keep the writeback stage simple. > >With some instructions taking longer than others, you can try either >the MIPS/Alpha approach as I've suggested, or use PowerPC/Pentium style >lookahead. The former is just simpler and works better on superscalar >implementations. > >> >For starters, floating point hardware does not behave the same as int >> >or fixed hardware. Multiplies can usually proceed immediately, but >> >adds have to wait until their exponents are compared so that they can >> >be aligned. For this reason, it can make a lot of sense to fuse the >> >two, so that this work overlaps. If mult and add must be combined, >> >latency is greatly reduced. We don't need to perform interim >rounding >> >and normalization. A multiply by itself, however, can run through a >> >MACC pipeline with very little added latency. FMADD also uses less >> >hardware than two separate units, saving both ports and routing >> >hardware. Since so much of floating point execution can be merged in >> >this way, fused macc is quickly becoming the default fp basic >execution >> >unit. It's hard to explain all of the hardware benefits to anyone >who >> >has never blocked out a floating point unit. >> >> I don't see anything wrong with using a MACC unit to handle FMUL, >FADD, >> and FMAC type instructions. If we do, I'd say go w/ seperate >instructions, >> and the unit could for example for FADD automagically use 1.0 for one >of >> the multiply-stage operands, or just skip the stage, whatever. > >You can add separate instructions, true, but those get you no value and >complicate decode slightly. you can just use fadd and fmul as >pseudoinstructions, so the details are hidden from whoever's assembling >the code. > >> >The reason for dealing with fp integration issues now is that IEEE >> >operations can deliver exceptions/NaN's/stalls not uncovered until >> >after the very last rounding and normalizing steps have finished. >> >Avoiding many of these problems demands the use of native numbers, >> >which may be harder to squeeze into 64 bit registers. >> > >> >Another issue stems from the fact that IEEE 754 numbers are not >handled >> >efficiently in registers, which is why Alpha converts them into a >> >simpler native format. The problem there is that you either have to >> >separate them from integer hardware (which may anticipate IEEE >numbers) >> >or work on native format numbers. AltiVec chooses to keep all data >> >types in one set of SIMD registers, like f-cpu, but fixed in width. >It >> >has its pros and cons. In any case, AltiVec uses simpler Java >> >numerics, not IEEE 754. (If you want to read about some of IEEE's >more >> >obscure features, read Patterson and Hennessy, CO&D, pp 317-21. >You'll >> >quickly see why I don't like the standard.) >> >> I'm all for simpler FP formats, but I wonder how much trouble it is to >> convert between them and IEEE? Is it worth having a dedicated >instruction >> for that, or doing in software instead (prolly soft). > >You either always convert (with every fp load store) or you never >bother. Since they're going to be kept in general registers, they have >to stay as IEEE 754 numbers all the time. Of course, they have to be >effectively converted before they can go through the fp pipeline, then >normalized, rounded, and occasionally run back through the last stage >or two. You also have to check before hand whether they are NaN's >(signalling or nonsignalling) or denormalized, which means looking for >all zero's in the exponent, then checking to see if there are ones in >the significand. IEEE 754 numbers were never designed to flow >efficiently through a pipeline like Cray numbers. They were intended >for numerical analysts. Hardware engineers had little say in its >adoption, and compiler developers were nowhere to be found. > >If we're also packing singles, they can't coexist with doubles. That >is, you can no longer use double precision hardware to handle singles, >so you must have separate units. William Kahan, the man most >responsible for the standard, is going around telling programmers to >just automatically use doubles all the time, whether they think they >need them or not. In addition, most benchmarks use doubles to preserve >accuracy and level the field. Also, doubles are used more often today >to avoid having to make fp code more inherently accurate (properly >ordering operations, and so forth). > >> >However, if we're just going to end up with a unified, 10-ported, >> >64-bit, 63 entry register file, it's NOT going to run fast like >> >smaller, simpler RISC rf's. Big, complex rf's are slow, like SPARC. >> >> the register file goes through the crossbar. the crossbar has all the >> ports, the register file just 5 or so (3 read, 2 write.. I think?) > >That requires some aliasing hardware, remapping the register names for >each instruction. > >> well, we're using SIMD in the sense that we pack multiple operands >into >> a single register for operation at once, but also, we can change the >> meanings of the size flags in later versions of the processor by using >> a special register, whenever we increase the register width, if we do. >> I.e. make what was 1/2/4/8 byte decode instead to 2/4/8/16 byte, if we >> implemented 128bit registers. By setting this to the old 1/2/4/8 old >> code runs without recompilation, just wastes register space. and newer >> code can take advantage of the wider registers by changing the width >to >> suit them. Of course, if it was left at the first width setting, then >> you'd double the number of each size you could use - the second >setting >> just gives you wider sizes, but of the same number. pick and choose, >> and change whenever needed. (One of the things that will be stored >when >> switching contexts, or by the OS, not sure which? have we decided >whether >> it goes in the CMB?) > >Perhaps we should say that we're duplicating the registers and >hardware, rather than widening the registers. It may sound silly, but >it makes the conceptual model easier to understand, especially for the >layprogrammer. > >A downside to variable width is that, when running 256-bit SIMD on a >64-bit design, you have to take them one at a time. If you run the >course of the entire program for each set, you may get a crash on one, >even though you've written data to memory on the earlier runs. The >compiler may not have taken this into account, thinking that code would >always run sequentially on the 256 bit hardware, crashing sequentially >if ever. > >> >When I say limit ourselves to 64 bits, I mean perform 64-bit >operations >> >on 64-bit registers. That's not to say we can't duplicate, but the >> >duplicated units should work only on their own 64-bit fields. I'm >not >> >saying that we have to limit total width, except to keep the die area >> >small enough to where the clock signal and control signal setup times > >> >become the critical path... or that we lose the ability to use exotic >> >materials later on. >> >> do you mean not allow 8x8 on 64 register, or 8bit on 64bit (wasting >the >> other 54 bits), or just that we don't perform an operation that uses >> adjecent registers, or ... ?? > >Adjacent. Permute goes to town on two 64 bit regs at a time. On one >64 bit pipeline, we might as well at least do packed 8x8's, since it's >useful for lots of tasks (like pixel and texture manipulation), and can >be used to build larger multiplies fast. > >Packed, SIMD 64bit pipes can be duplicated. I think that's the >original proposal, anyway. If so, permutes can perform well on each 64 >bit field. > >> >Permute can be performed >> >repeatedly on many fields or sets of registers in parallel. The >reason >> >is that shuffling goes on only within independent 64-bit fields. >Since >> >the permute operation is merely being performed identically on >multiple >> >fields, the same decode can be shared universally. >> >> Well, if it can replace most of the bit scrambler or all of it, why >not >> use it instead? but bit scrambler sounds cooler IMHO :) > >It certainly sounds different. I like bit/byte shuffler. > >> >That just leaves the inc./compare pipeline operating with one cycle >> >latency. This simplifies the hardware even further, as the early >> >feedforward could even be constrained to just one bit: the result of >> >the comparison. That's simplicity. >> >> Hrm.. sounds good. >> >> -JV >> >Yeah! > >--Maxx > > >------------------------------------------------------------------------ >Learn more with SmartPlanet. It's a new way of learning online. >SmartPlanet offers hundreds of courses to take on your time, >in your space. Join for FREE today! >http://click.egroups.com/1/1704/0/_/3462/_/953391208/ > >eGroups.com Home: http://www.egroups.com/group/f-cpu/ >http://www.egroups.com - Simplifying group communications > > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 19 15:46:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22856 for dvd-discuss-outgoing; Sun, 19 Mar 2000 15:46:49 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA22851 for ; Sun, 19 Mar 2000 15:46:47 -0500 Received: (qmail 17875 invoked by uid 60001); 19 Mar 2000 22:00:19 -0000 Message-ID: <20000319220019.17874.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Sun, 19 Mar 2000 14:00:19 PST Date: Sun, 19 Mar 2000 14:00:19 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Support for Commercially Significant Uses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks to Dana Parker for putting me in contact with Rick Hallock, a DVD utility developer. Rick confirmed, via private email, that DVD authors would have interest in DeCSS as a utility to recover the mpeg originals, and for purposes of troubleshooting problems on CSS'd discs. Rick also confirmed that CSS remains a process done solely by the DVD manufacturers at the mastering stage. --- Rick Hallock wrote: > Your point with regard to the value of DeCSS for developers for the > purpose of recovering content from an existing title in order to > create a new title is valid. I've had a number of > developers contact me regarding the possibility of my VOBSnoopy > tool having this ability, which it doesn't. In every case it was a > situation where the original title developer would realize huge > savings in time and money if they could simply take the > original content of the disc and use it in a new title, as opposed > to having to reencode the content. > > Also, for what its worth, when attempting to debug a problem on a > CSS'ed disc it becomes nearly impossible to do more than > superficial analysis without DeCSS. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Mar 19 17:24:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03980 for dvd-discuss-outgoing; Sun, 19 Mar 2000 17:24:37 -0500 Received: from mail.rdc1.sdca.home.com (imail@ha1.rdc1.sdca.home.com [24.0.3.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA03977 for ; Sun, 19 Mar 2000 17:24:36 -0500 Received: from home.com ([24.0.180.44]) by mail.rdc1.sdca.home.com (InterMail v4.01.01.00 201-229-111) with ESMTP id <20000319233807.EKSV14303.mail.rdc1.sdca.home.com@home.com> for ; Sun, 19 Mar 2000 15:38:07 -0800 Message-ID: <38D5654C.B1E8E0CB@home.com> Date: Sun, 19 Mar 2000 15:39:56 -0800 From: Phillip Franklin Organization: Phillip Franklin Multimedia X-Mailer: Mozilla 4.61 [en]C-AtHome0407 (Win95; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Support for Commercially Significant Uses References: <20000319220019.17874.qmail@web503.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu As a media producer and co-owner of a media distribution company I too can see the commercial uses of DeCSS. Right now the only way to pull clips off DVD is to use a video capture system which obviously reduces some of the quality because of the decompress & recompress functions. Not only that one must capture in real time which can some times be time consuming. On a modern workstation equipped with an MPEG 2 editor this task could be much more effective. One aspect of our business is to distribute archives for stock footage to stock clip buyers. Part of the formula for coming up with the price is obviously the cost of production and distribution. So anything that can make our task easier, hence less costly, will benefit all those concerned with most of the benefits going to the copyright holders. The move into digital and electronic distribution is primarily done because of very significant long term cost savings. The promise of formats such as DVD would be to reduce the current expense and burden of storing, accessing, and distributing SP Beta video tapes. If the MPAA has it's way the only commercially available archives of motion pictures will be DVD CSS. If that is the case there would need to be a commercially available utility to move these data sources on various professional work stations in order to protect pricing and quality to the stock media buyer. Why should everyone else in the industry be crippled by needless copyright amendments or court decisions which can really be one sided? The MPAA does not always speak for the best interests of all those involved in the media industry. They are merely a trade association seeking very short sighted special privileges. The courts should be made aware of this. Phillip Franklin Bryan Taylor wrote: > > Thanks to Dana Parker for putting me in contact with Rick Hallock, a > DVD utility developer. > > Rick confirmed, via private email, that DVD authors would have interest > in DeCSS as a utility to recover the mpeg originals, and for purposes > of troubleshooting problems on CSS'd discs. > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 13:53:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22415 for dvd-discuss-outgoing; Mon, 20 Mar 2000 13:53:26 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22412 for ; Mon, 20 Mar 2000 13:53:26 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id PAA18360 for ; Mon, 20 Mar 2000 15:06:48 -0500 (EST) Message-Id: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 20 Mar 2000 15:01:44 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] An Outline Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu An attempt to organize in skeletal form the arguments we've been making. Many of the early areas of discussion that we seem to have left behind, such as reverse engineering or encryption research, still look promising. Please add if I've left threads out. (Note, the eon box was unreachable for most of this morning due to Harvard network problems.) --Wendy 0) The court doesn't have jurisdiction (wrong parties, procedural problems) plaintiffs aren't real parties in interest plaintiffs don't meet their burden with conclusory affidavits 1) DeCSS doesn't circumvent a) it permits use, not access - no 1201(a)(2) violation b) the DVD owner already has authority to access c) DeCSS doesn't give access, the player does 2) If DeCSS circumvents, it's within one of the exceptions a) reverse engineering b) encryption research c) DeCSS not a "technology, product, service, device, component, or part thereof" d) commercially significant purpose or use other than circumvention AND not primarily designed or marketed for circumvention 3) If DeCSS doesn't fit within one of the exceptions, 1201 is unconstitutional either as applied to DeCSS or on its face a) for taking away fair use (fair use is constitutionally mandated to meet the copyright "delicate balance") b) for putting too much burden on free speech i) source code is speech ii) unduly limiting ability to make derivatives/fair use of copyrighted works iii) unsupported by the necessary legislative findings for intermediate scrutiny (Turner I) c) for engendering antitrust problems / copyright misuse d) as impermissible delegation to private entities e) as not within congressional power (Copyright or Commerce) f) as void for vagueness g) for ex post facto effects h) for granting patent-like monopoly without the patent-requisite disclosure 4) The movie industry can't enforce the anticircumvention provision against DeCSS defendants because it's misusing copyrights/tying DVD players to copyright (antitrust or equity argument) wendy@seltzer.com Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 14:32:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27711 for dvd-discuss-outgoing; Mon, 20 Mar 2000 14:32:02 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27708 for ; Mon, 20 Mar 2000 14:31:59 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA23334 for dvd-discuss@eon.law.harvard.edu; Mon, 20 Mar 2000 12:42:13 -0800 Date: Mon, 20 Mar 2000 12:42:12 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000320124212.X13379@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.2.2.20000320143107.00c18dc0@law.harvard.edu>; from wendy@seltzer.com on Mon, Mar 20, 2000 at 03:01:44PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > c) DeCSS not a "technology, product, service, device, component, > or part thereof" Incidentally, I think this is a fairly strong argument; I laugh whenever I read a plaintiff's attorney calling DeCSS a "circumvention device". That is not good use of terminology. Is a text editor a "device" for editing text files? > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > unconstitutional either as applied to DeCSS or on its face > b) for putting too much burden on free speech > i) source code is speech This is my Big Issue and (though I may be too enthusiastic here) something I sincerely hope may be established in this case. (Of course, this might not be the best case in which to establish this; maybe this case can be won on some other ground and then this precedent can be set elsewhere.) I'm very interested in this point and hope to have an opportunity to work on it. My understanding is that virtually all caselaw on this point comes from the encryption regulation challenges (Bernstein, Junger, and Karn). I hope to have an opportunity to read all of those soon (I've read large parts of the _Bernstein_, and only excerpts from _Junger_, and I don't think Karn even made it into court). Is there any other case or category of cases worth looking at here? > 4) The movie industry can't enforce the anticircumvention provision against > DeCSS defendants because it's misusing copyrights/tying DVD players to > copyright (antitrust or equity argument) How about the critique of the means by which authority is granted in the actual DVD licensing regime, as discussed on dvd-discuss? This probably fits under one of the other points -- but there is an argument based on industry vagueness about "licenses" and "authorization" to play actual DVDs on actual DVD players. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 15:15:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01600 for dvd-discuss-outgoing; Mon, 20 Mar 2000 15:15:08 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA01597 for ; Mon, 20 Mar 2000 15:15:07 -0500 Received: (qmail 31585 invoked by uid 502); 20 Mar 2000 21:30:15 -0000 Date: Mon, 20 Mar 2000 16:30:15 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Release Message-ID: <20000320163015.D2333@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well, folks, the 3/20 release of the OpenLaw DVD Forum Frequently Asked Questions list is out there for any abuse you wish to give it. :) It will most likely undergo revision releases in the next few days; I'm waiting on some important background information from certain sources, but felt it was important to put out what I had rather than putting it off any further. I've sorta scoured the last three weeks or so of my email, looking for anything that was submitted to me but that I hadn't put in yet. I *think* I have everything. If you've given me material for the FAQ and you don't see it, please drop me a private line and let me know. The situation will be corrected. Also, if you've submitted material, and it's there, but you haven't been credited, that's either because I don't have any information on you or that I was just stoned and forgot. Either way, drop me a line with your info (real name, email, 2-3 sentence bio) and it'll be corrected. My best, Rob Warren greslin@linuxpower.org OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 15:36:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05671 for dvd-discuss-outgoing; Mon, 20 Mar 2000 15:36:24 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05625 for ; Mon, 20 Mar 2000 15:36:21 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id WAA15371 for ; Mon, 20 Mar 2000 22:49:42 +0100 (CET) From: "tser" To: Subject: RE: Free speech in software (was: Re: [dvd-discuss] An Outline) Date: Mon, 20 Mar 2000 22:35:24 +0100 Message-ID: <000001bf92b4$34751480$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) Importance: Normal In-Reply-To: <20000320124212.X13379@cty-alum.org> X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > c) DeCSS not a "technology, product, service, device, component, > or part thereof" >Incidentally, I think this is a fairly strong argument; I laugh whenever >I read a plaintiff's attorney calling DeCSS a "circumvention device". >That is not good use of terminology. >Is a text editor a "device" for editing text files? The keyboard you use while using the Text-Editor Product, is the InputDevice. Your Monitor the Output Device. The Text Editor, Notepad.exe, comes as a Component of The Operating System. The Operating System is a Product. Notepad Not, You cannot Download ,buy or get notepad.exe seperatly legaly without having the OS. notepad.exe on windows 2000 depends on win32 technologie, it uses functions of comdlg32.dll, shell32.dll, msvcrt.dll, advapi32.dll,kernel32.dll, gdi32.dll,user32.dll,winspool.drv. Without these other Components, Notepad could not live. Now DeCss DeCss Used the DVD-ROM device to Access the Data, Stored on a DVDdisc. DeCSs itself isnot a technology. It uses A technology, to do "Things" with the Device, in order to get a 1 on 1 bitstream from the DVDdisc But, You can Use Decss Seperatly. Decss is a product. You can Download, or Get DeCss without needing anything else. When Using Software Like PowerDVD, to play A DVD's which you had backuped to your PC, DeCSS is a Access-Component to it. Somebody can Offer DeCSS'ing as A service to restore content from a DVD. Now here comes the catch.. should anybody create a player, who is directly feed by Decss. Decss has become a Input device for that player. Will that player call certain functions of Decss, then Decss is a Component If the player uses the source code of decss and compiles it inside it, decss has become a technology. Offcourse, this is my (lawunprofessional,technical) view of it. - Reinder. > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > unconstitutional either as applied to DeCSS or on its face > b) for putting too much burden on free speech > i) source code is speech This is my Big Issue and (though I may be too enthusiastic here) something I sincerely hope may be established in this case. (Of course, this might not be the best case in which to establish this; maybe this case can be won on some other ground and then this precedent can be set elsewhere.) I'm very interested in this point and hope to have an opportunity to work on it. My understanding is that virtually all caselaw on this point comes from the encryption regulation challenges (Bernstein, Junger, and Karn). I hope to have an opportunity to read all of those soon (I've read large parts of the _Bernstein_, and only excerpts from _Junger_, and I don't think Karn even made it into court). Is there any other case or category of cases worth looking at here? > 4) The movie industry can't enforce the anticircumvention provision against > DeCSS defendants because it's misusing copyrights/tying DVD players to > copyright (antitrust or equity argument) How about the critique of the means by which authority is granted in the actual DVD licensing regime, as discussed on dvd-discuss? This probably fits under one of the other points -- but there is an argument based on industry vagueness about "licenses" and "authorization" to play actual DVDs on actual DVD players. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 15:48:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07938 for dvd-discuss-outgoing; Mon, 20 Mar 2000 15:48:46 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA07749 for ; Mon, 20 Mar 2000 15:48:45 -0500 Received: (qmail 6432 invoked by uid 502); 20 Mar 2000 22:03:57 -0000 Date: Mon, 20 Mar 2000 17:03:57 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000320170357.F2333@linuxpower.org> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000320124212.X13379@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000320124212.X13379@cty-alum.org>; from Seth David Schoen on Mon, Mar 20, 2000 at 12:42:12PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 20, 2000 at 12:42:12PM -0800, Seth David Schoen wrote: > Wendy Seltzer writes: > > > c) DeCSS not a "technology, product, service, device, component, > > or part thereof" > > Incidentally, I think this is a fairly strong argument; I laugh whenever > I read a plaintiff's attorney calling DeCSS a "circumvention device". > That is not good use of terminology. > > Is a text editor a "device" for editing text files? Do you have any solid basis for stating that it isn't? "Device" strikes me as a perfectly acceptable generic term for legal purposes. So does "technology". Rob Warren greslin@linuxpower.org OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 17:26:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28713 for dvd-discuss-outgoing; Mon, 20 Mar 2000 17:26:43 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA28710 for ; Mon, 20 Mar 2000 17:26:41 -0500 Received: (qmail 8392 invoked by uid 60001); 20 Mar 2000 23:40:04 -0000 Message-ID: <20000320234003.8391.qmail@web508.mail.yahoo.com> Received: from [131.44.121.4] by web508.mail.yahoo.com; Mon, 20 Mar 2000 15:40:03 PST Date: Mon, 20 Mar 2000 15:40:03 -0800 (PST) From: Bryan Taylor Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > > unconstitutional either as applied to DeCSS or on its face > > b) for putting too much burden on free speech > > i) source code is speech I propose something even stronger: ii) computer programs are speech I mean this to include object code as well as source code. This is based on the accepted observation that computer programs are expressive. Indeed they are copyrightable for precisely this reason. Congress called them 'literary works' and did NOT modify title 17 to include copyright of computer program expression on the theory that such expression was already protected. That computer programs, even in object code format, are copyrightable as 'literary works' has been confirmed by every Court of Appeals that has contemplated it - this is truly settled law. For three such citations and quotes see http://eon.law.harvard.edu/archive/dvd-discuss/msg01141.html I see no way to argue that something that meets the Constitution's definition of the 'writings' of an 'author' for copyrightable expression is somehow not speech under the First Amendment's definition of expression. In fact, one of the most cited cases regarding copyright of computer programs is the 2nd Circuit Court of Appeals ruling in Computer Associates v. Altai 982 F.2d 693, in which the Court gave it's famous "abstraction-filtration-comparison" method for finding the copyrightable expression within a computer program. The case is found at: http://eon.law.harvard.edu/openlaw/dvd/cases/Computer_Assoc_v_Altai.txt For example, the expression in DeCSS.exe is (1) the artistry in laying out the visual interface, (2) the input & output feedback that communicate to the user as the program runs, and (3) the general "look and feel". It is often argued that the functional aspects of computer programs are controlling. Statements to the effect that a computer program 'is best treated like a virtual machine' are common. Judge Fletcher of the 9th Circuit Appeals Court refuted this arguement in it's decision in Bernstein: "Second, and more importantly, the government's argument, distilled to its essence, suggests that even one drop of 'direct functionality' overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. ... The First Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution." http://techlawjournal.com/courts/bernstein/19990506.htm Indeed, the grooves on a record do little more than literally control a machine. No one argues, however, that effect of the control is not expression. Is there any real difference in the computer arena? A computer is a communication device. The bits of the object code are like the grooves of a record, whose expression the machine releases. > I'm very interested in this point and hope to have an opportunity to > work on it. My understanding is that virtually all caselaw on this point > comes from the encryption regulation challenges (Bernstein, Junger, > and Karn). There is actually a wealth of information on software expression in the copyright cases cited in the post I linked above. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 17:54:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31506 for dvd-discuss-outgoing; Mon, 20 Mar 2000 17:54:15 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31498 for ; Mon, 20 Mar 2000 17:54:14 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id TAA25337 for ; Mon, 20 Mar 2000 19:07:38 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA18677; Mon, 20 Mar 2000 19:07:36 -0500 (EST) Date: Mon, 20 Mar 2000 19:07:36 -0500 (EST) Message-Id: <200003210007.TAA18677@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] An Outline In-Reply-To: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > unconstitutional either as applied to DeCSS or on its face > a) for taking away fair use (fair use is constitutionally > mandated to meet the copyright "delicate balance") > b) for putting too much burden on free speech > c) for engendering antitrust problems / copyright misuse > d) as impermissible delegation to private entities > e) as not within congressional power (Copyright or Commerce) > f) as void for vagueness > g) for ex post facto effects > h) for granting patent-like monopoly without the patent-requisite > disclosure There's also the argument that 1201 is unconstitutional because it grants exclusive rights (within the scope of the Copyright/Patent clause) which extend indefinitely, violating "...for limited times...". BTW, to my untrained eye, e) seems to encompass a lot of the other arguments here (e.g., d, g, and h --- I take it that the arguments for these are that the Copyright and Commerce clauses don't permit, e.g., patent-like grants without disclosure). rst From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 18:00:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00732 for dvd-discuss-outgoing; Mon, 20 Mar 2000 18:00:31 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA00729 for ; Mon, 20 Mar 2000 18:00:30 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id QAA23616 for dvd-discuss@eon.law.harvard.edu; Mon, 20 Mar 2000 16:10:45 -0800 Date: Mon, 20 Mar 2000 16:10:44 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000320161044.D23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000320234003.8391.qmail@web508.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000320234003.8391.qmail@web508.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Mar 20, 2000 at 03:40:03PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Seth David Schoen wrote: > > > > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > > > unconstitutional either as applied to DeCSS or on its face > > > b) for putting too much burden on free speech > > > i) source code is speech > > I propose something even stronger: > ii) computer programs are speech > > I mean this to include object code as well as source code. I agree with this, and indeed _Bernstein_ suggests it, but fairly few people have been willing to defend it. There have always been many people who could read object code. The pretense that nobody can read object code is kept up in various software licenses (and laws and regulations), but it's just not true and has never been true. Higher-level languages exist, not to "let" humans comprehend things, but to serve various goals like _aiding_ human comprehension, facilitating modifications, and improving abstraction, portability, and modularity. The object code is _still_ in a highly abstracted symbolic language (machine or virtual machine opcodes). The people who understand such languages are relatively few because the language are quite difficult to learn and it does not seem worth most people's while, given their other options. If you add tools like a disassembler, most anyone with an understanding of programming can learn to "read" (adapt or translate into a more useful form) binaries and gain information from them. If object code were as "opaque" as it is popularly thought to be, or compilation, assembly, and linking such "one-way processes" as public and judicial opinion sometimes considers them, the DeCSS and Cyber Patrol cases _would not exist_, because the reverse-engineering would have been technically impossible. Is it such a mystical black art that only a few secret evil hackers can practice? No, it's a common-sense ordinary skill that many technical experts may want to have so that they can gain a better understanding of the programs they work with -- and examples are given in detail in the Cyber Patrol paper. I can't read 80386 binaries, but I can read 8086 assembly, and I can make assembly from binaries easily enough, even using programs I can write myself. If I had bothered to learn, I could read 80386 binaries directly, probably converting them to assembly in my head. I have met people who didn't need disassemblers, and I've met _lots_ of people who had memorized some opcodes on their preferred platforms. > I see no way to argue that something that meets the Constitution's > definition of the 'writings' of an 'author' for copyrightable > expression is somehow not speech under the First Amendment's definition > of expression. > > In fact, one of the most cited cases regarding copyright of computer > programs is the 2nd Circuit Court of Appeals ruling in Computer > Associates v. Altai 982 F.2d 693, in which the Court gave it's famous > "abstraction-filtration-comparison" method for finding the > copyrightable expression within a computer program. > > The case is found at: > http://eon.law.harvard.edu/openlaw/dvd/cases/Computer_Assoc_v_Altai.txt > > For example, the expression in DeCSS.exe is (1) the artistry in laying > out the visual interface, (2) the input & output feedback that > communicate to the user as the program runs, and (3) the general "look > and feel". I'd hate to rely on look and feel copyrights to defend a lawsuit; will we end up claiming that DeCSS is legal to distribute because GNOME and KDE are not? > It is often argued that the functional aspects of computer programs are > controlling. Statements to the effect that a computer program 'is best > treated like a virtual machine' are common. Those statements assume that people can't read computer programs. It's obvious to any programmer that people can read source code, and it should be obvious to any programmer that people can read object code, too. > Judge Fletcher of the 9th Circuit Appeals Court refuted this arguement > in it's decision in Bernstein: > > "Second, and more importantly, the government's argument, distilled to > its essence, suggests that even one drop of 'direct functionality' > overwhelms any constitutional protections that expression might > otherwise enjoy. This cannot be so. ... The First Amendment is > concerned with expression, and we reject the notion that the admixture > of functionality necessarily puts expression beyond the protections of > the Constitution." > > http://techlawjournal.com/courts/bernstein/19990506.htm > > Indeed, the grooves on a record do little more than literally control a > machine. No one argues, however, that effect of the control is not > expression. Is there any real difference in the computer arena? A > computer is a communication device. The bits of the object code are > like the grooves of a record, whose expression the machine releases. The pits on a DVD (being digital) do _nothing_ other than directly controlling a machine. Cf. Eben Moglen's "Anarchism Triumphant", in which he attempts a general definition of software along these lines (maintaining that digital AV recordings are an example of software). The problem here is perhaps that the "effect of the control" of a general-purpose programmable computer by a computer program is not some more traditional form of expression such as natural-language sentences about real or imagined worlds, or sound waves reproducing a singer's voice as she sings a melody -- it's the creation of a virtual machine. > > I'm very interested in this point and hope to have an opportunity to > > work on it. My understanding is that virtually all caselaw on this > point > > comes from the encryption regulation challenges (Bernstein, Junger, > > and Karn). > > There is actually a wealth of information on software expression in the > copyright cases cited in the post I linked above. I'll try to take a look at them soon. Thanks. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 18:46:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA06994 for dvd-discuss-outgoing; Mon, 20 Mar 2000 18:46:10 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA06991 for ; Mon, 20 Mar 2000 18:46:09 -0500 Received: (qmail 2111 invoked by uid 60001); 21 Mar 2000 00:59:32 -0000 Message-ID: <20000321005932.2110.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Mon, 20 Mar 2000 16:59:32 PST Date: Mon, 20 Mar 2000 16:59:32 -0800 (PST) From: Bryan Taylor Subject: RE: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- tser wrote: > >Is a text editor a "device" for editing text files? >[...] > The Text Editor, Notepad.exe, comes as a Component of The Operating > System. The Operating System is a Product. [...] You cannot Download > ,buy or get notepad.exe seperatly legaly without having the OS. I don't really consider notepad.exe to be a text editor, sort of like I don't consider Taco Bell to actually be food. It is more properly called a "text-editor like substitue". By the way, the original poster did not refer to notepad.exe, so I'm not sure why you brought it up. Also, your use of the word "The" as in "The Text Editor" and "The Operating System" is exceedingly narrow minded. This is no doubt a by product of the brain damage associated with using Microsoft products for too long. I recommend compiling Mozilla from the latest nightly build sources or some strong smelling salts. For those unfortunate individuals who are stuck with Microsoft, I recommend ultraedit, from www.ultraedit.com. This is a real text-editor. There are many other text editors available for windows, such as PFE , Notetab, TextPad, emacs, and I think there is even a version of vim for windows, if I'm not mistaken. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 18:53:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10969 for dvd-discuss-outgoing; Mon, 20 Mar 2000 18:53:37 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA10965 for ; Mon, 20 Mar 2000 18:53:36 -0500 Received: (qmail 1494 invoked by uid 60001); 21 Mar 2000 01:06:59 -0000 Message-ID: <20000321010659.1493.qmail@web505.mail.yahoo.com> Received: from [24.28.154.65] by web505.mail.yahoo.com; Mon, 20 Mar 2000 17:06:59 PST Date: Mon, 20 Mar 2000 17:06:59 -0800 (PST) From: Bryan Taylor Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > There have always been many people who could read object code. The > pretense that nobody can read object code is kept up in various > software licenses (and laws and regulations), but it's just not true > and has never been true. Now that I think about it - I do this all the time. My job is to tune an Oracle database. I can look in the database and find the offensive SQL statements, but often I must use searches of object code followed by direct eyeballing of object code to pin down the location within application of the offender. Only then do I pop into the source to make the changes. Certainly others can read more complex aspects of object code, as you go on to describe. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 19:06:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA15938 for dvd-discuss-outgoing; Mon, 20 Mar 2000 19:06:23 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA15935 for ; Mon, 20 Mar 2000 19:06:23 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id UAA05324 for ; Mon, 20 Mar 2000 20:19:46 -0500 (EST) Message-Id: <4.2.2.20000320174022.00c155a0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 20 Mar 2000 20:19:44 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] FWD from sparky: framing the argument In-Reply-To: <000001bf9113$af1bbce0$e87945ce@bugbug.WinNATDomain> References: <4.2.2.20000308140343.00b69eb0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One difference in slant between this and the outline I posted is that you seem to be pressing for a recognition of a right to access for fair use purposes within 1201, while I was suggesting that if 1201 does not give such a right then it is unconstitutional. So you are reading the cases for statutory construction, while I was reading them for constitutional mandates. The choice between the approaches is probably a strategic decision for which it would help to flesh out both sides. This looks like a good thread of argument. At 01:53 PM 3/18/00 -0600, sparky@suba.com wrote: >FRAME OF ARGUMENT > >The defendants are not guilty of trafficking in access control circumvention >tech. > >Q: Why? >A: They are not guilty because the tech in question is not to be construed >as intended solely and obviously for the act of infringing copyright through >access control circumvention; that is, it can be used in non-infringing >uses. > >Q: How is this proved? >A: This is basically to be proved by showing that the tech in question only >circumvents access control on store bought media. (This is in contrast to >tech which may circumvent access control on streaming media, broadcast, or >other forms of delivery where the copyrighted work is not sold fixed on >media ("black boxes").) > >1) In the latter, any active access to the copyrighted work is strictly >prohibited. Thus any tech which circumvents access control put in place to >restrict active access to these formats of media is clearly and obviously >against the law. > >++++++++++++++++++++++++++++++++++++ >[SUPPORT NEEDED - reference to rulings re broadcast or streaming media? > no, not necessary; rely solely on the fact that for works sold > fixed on >media fair use law applies. No need even to bring broadcast/streaming media >into argument, except as foil. >************************************ As a foil is good. Show that DIVX and RealMedia streams should be distinguished -- there's some valid place for access controls, just not here. This to blunt the plaintiffs' response: "but if we can't put access controls on our DVDs, what does 1201(a) give us?" >2) However, with regard to store bought media, it has been determined that >considerations other than the copyright holder's come into play once the >work has been sold. These considerations are free speech and fair use >considerations, which determine that there are uses to which works fixed in >media may be put *without* the authority of the copyright holder. (It is >important to emphasize that there is no [explicit] granting of the >"authority" mentioned in 1201, but that this is all right because to fairly >use there does not have to be any.) These uses are by definition possible >and allowed with works fixed on media and sold. Circumvention of access >control for any uses which are non-infringing (permitted fair uses) does not >require the permission of the copyright holder, because the uses do not. > >++++++++++++++++++++++++++++++++++++ >THOUGH IT IS NOT NECESSARY THAT THERE BE AN ACTUAL ACT OF INFRINGEMENT, WE >MUST STILL UNDERSTAND 1201 AS REFERRING TO A POSSIBLE ACT OF INFRINGEMENT >(act "which constitutes infringement under this title"). What this means, >however, is that the device which may be used for access control >circumvention must only be usable in an act which is always infringing - in >other words, that it is impossible to use the access control circumvention >device without making an infringing use of the work. Were DeCSS a "black >box", this would be the case. Since it works on store bought media (and >especially since it works ONLY on such media), it is possible to use it for >uses which are non-infringing. > >[17 USC 107 requires case-by-case determination whether a use is fair >SEE: > U.S. Supreme Court > HARPER & ROW v. NATION ENTERPRISES > 471 U.S. 539 (1985) > >http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=471&pa >ge=539 > (courtesy Bryan Taylor, Fair Use is not statutory 1) > > "Section 107 requires a case-by-case determination whether a > particular use >is >fair, and the statute notes four nonexclusive factors to be considered." > > "Perhaps because the fair use doctrine was predicated on the author's >implied consent to 'reasonable and customary' use when he released his work >for public consumption, fair use traditionally was not recognized as a >defense to charges of copying from an author's as yet >unpublished works. Under common-law copyright, 'the property of the author . >. . in his intellectual creation [was] absolute until he voluntarily >part[ed] with the same.'" > >[REFERENCE TO KAPLAN'S OWN WORDS AT INJUNCTION HEARING > Kaplan states that there need be no actual act of infringement for a >plaintiff to sue under 1201. True. BUT this necessarily implies that there >must be at least a POSSIBLE act of infringement. We must then make Kaplan >see that not just a possible act, but ONLY acts of infringement with DeCSS >can be possible - that infringement must be the only possibility, must be >necessary, in any act using DeCSS - for guilt to be assigned under >1201(a)(2). > >[REFERENCE TO SUPPORT SHOWING DeCSS ONLY WORKS ON BOUGHT MEDIA > /IS NOT INTENDED FOR INFRINGING ACTS (HOME USE) > TECH ARGUMENTS HERE > >[Incidentally, if DeCSS can create a copy of a DVD which works (can be >watched like the original DVD), that is legal because fair use allows >copying for backup purposes. If DeCSS cannot create a copy of a DVD which >works, then there is no potential infringement because the copies are >useless. > >[DeCSS INTENDED AS TOOL TO CREATE LINUX DVD PLAYER > CURRENTLY HYPOTHETICAL: > Johansen wrote DeCSS, but based on Fawcus' css-auth code. > Fawcus' code was >a complete rewriting of Johansen's original DeCSS code - that is, completely >original. There is no doubt that Fawcus' intent of the code was a >non-infringing use (new Linux DVD player). Therefore, "DeCSS" as a >decryptor, may not substantially differ from css-auth. (See LiViD archives, >esp. October.) > MPAA will question based on 1) DeCSS has its own > "wrapper" 2) DeCSS is >distributed apart from other LiViD tools. > response to 1): this only means that DeCSS is standalone. > standalone does >not = infringing use. For this to be persuasive, standalone must have >reasonable purpose. Prima facie, there is a reason for DeCSS to be separate >from other tools as other tools may or may not have applicability to >specific DVD program/movies (Dana claimed that each was tailor-made for each >movie). DeCSS on the other hand is always applicable because it provides >access to the DVD program for all other tools. > response to 2): method of distribution is typical of open > source program. >Furthermore, distribution by itself is circumstantial and completely neutral >re: its infringing/non-infringing use. > >Could we bring lack of harm into it? Might be dependent on there being an >actual act of infringement. >************************************ > > > >3) Though the wording of 1201 appears to make a flat prohibition to access >control circumvention, in fact it is a mistake to interpret it thusly. There >are many things, such as for example certain passages within the law, or the >intent of the law's authors registered in official statements, which clearly >indicate that 1201 is to be interpreted with full respect for the venerable >history of fair use and free speech which has been developed in our courts >over hundreds of years of federal court rulings. Therefore we are not to >construe that the considerations of the preceeding paragraph (2) do not >apply in cases brought to court under 1201. > >++++++++++++++++++++++++++++++++++++ >IT IS AT THIS POINT IN THE DEFENSE THAT 1201 CAN BE DIRECTLY ATTACKED. HERE >IS WHERE WE BRING OUT ALL THE HORRIBLE SCENARIOS THAT CAN HAPPEN IF 1201 IS >INTERPRETED AS A FLAT PROHIBITION. IF WE LOSE, WE WANT TO GO DOWN STATING >THE SHORTCOMINGS OF 1201; THAT WAY THE APPEAL WILL HAVE THE VIRTUE OF BEING >OBVIOUSLY FOR ALL PERSONS' FAIR USE RIGHTS, FREE SPEECH, ETC. [lots of good cites cut] >CONCLUSION >As the tech in question does not have an obvious and clear use only for >piracy, which is clear from: the nature of the tech, the nature of the works >whose access control measures it circumvents, and the current state of free >speech and fair use legislation, it is just that the defendants in this case >be completely acquitted of any wrongdoing. > > >____________________________________________________________________________ >__ >POSTSCRIPT - > >1) ARGUMENTS THAT WILL NOT WORK OR WILL NOT BE AS FORCEFUL > >a) Everyone's favorite Reverse Engineering - > while the breaking of CSS was reverse engineering, 1201 has a reverse >engineering exception for one sort only: where it is for the purpose of >making a software program operate with a program protected by access >control. The reverse engineering which created DeCSS does not fit this >profile. However, reverse engineering is allowed under fair use where it >does not infringe copyright. The RE which created DeCSS should fall into >this category. The only way to bring this point to bear, however, is to >argue the above. I don't think we've dismissed the possibility that DeCSS enables interoperability between the DVD program and the the computer operating system or other programs. >( "b" I think is actually wrong now, or may be, until the hypothetical >nature of DeCSS creation is cleared up.) >b) It's for Linux! - > immaterial. The ability/right to create a competing DVD player > does not >give the right to break the encryption. Furthermore, proving this in court >will be difficult due to the nature of the documentation of DeCSS's >creation. For example, one avenue which was not pursued by the creators was >to contact the MPAA or DVDCCA to see if they would work with the creators of >a Linux player. > >c) It doesn't infringe copyright! - > as the judge has opined, the lack of an actual act of infringement is >immaterial. However, the lack of a potential (really, necessary) act of >infringement is NOT. > >d) "authority" to access work given through sale. > MPAA: "Yeronner, that's completely, absolutely, and in many udder > ways >totally absurd. Givin da buyer permission to access ain't da same as givin >da buyer leave to circumvent our access control." > Kaplan: "They're right, Good Guys, it doesn't make much sense to > argue that >they put their access control on an item through the sale of which >permission was given to circumvent that same access control. Come back >tomorrow with a better defense. In the meantime, GUILTY!" > Gavel: "Bang!" :) But Your Honor, just because they meant to put access control on the work doesn't mean they succeeded. All they managed to put in was a use control that overreaches the bounds of their exclusive rights... wendy@seltzer.com Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 19:10:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16420 for dvd-discuss-outgoing; Mon, 20 Mar 2000 19:10:26 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA16417 for ; Mon, 20 Mar 2000 19:10:25 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id UAA06957 for ; Mon, 20 Mar 2000 20:23:48 -0500 (EST) Message-Id: <4.2.2.20000320191931.00c01b40@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 20 Mar 2000 20:23:45 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] An Outline In-Reply-To: <200003210007.TAA18677@soggy-fibers.ai.mit.edu> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Point 3 reorganized, at rst's suggestion. > > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > > unconstitutional either as applied to DeCSS or on its face a) puts too much burden on free speech i) source code is speech ii) object code is speech iii) 1201 unsupported by the necessary legislative findings for intermediate scrutiny (Turner I) iv) takes away fair use (fair use is constitutionally mandated to meet the copyright "delicate balance") b) outside congressional power (Copyright or Commerce) i) potentially unlimited times ii) patent-like monopoly without the patent-requisite disclosure iii) engenders antitrust problems / copyright misuse c) procedurally unsound i) void for vagueness ii) ex post facto effects iii) impermissible delegation to private entities At 07:07 PM 3/20/00 -0500, rst@ai.mit.edu wrote: >There's also the argument that 1201 is unconstitutional because it >grants exclusive rights (within the scope of the Copyright/Patent >clause) which extend indefinitely, violating "...for limited >times...". > >BTW, to my untrained eye, e) seems to encompass a lot of the other >arguments here (e.g., d, g, and h --- I take it that the arguments for >these are that the Copyright and Commerce clauses don't permit, e.g., >patent-like grants without disclosure). > >rst wendy@seltzer.com Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 19:32:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19502 for dvd-discuss-outgoing; Mon, 20 Mar 2000 19:32:32 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19499 for ; Mon, 20 Mar 2000 19:32:31 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 20 Mar 2000 17:46:10 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19CD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention or Access? Date: Mon, 20 Mar 2000 17:46:09 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Steven Barker [mailto:steve@arh1176.urh.uiuc.edu] ... > > > Judge's response (perhaps after some coaching from the MPAA): > So, DeCSS only makes unauthorized access of the disk key, > using a player key > possibly misappropriated from the Xing player, and this > invalidates the charge > under 1201 because the disk key is not copyrighted (or > copyrightable). What > then is the rest of the access? DeCSS clearly does decrypt > copyrighted movies > from the disk. It's key is definitively not licensed to it's > makers. Even if > accessing the disk key is legal, using it to decrypt the movie is not > authorized unless it was gotten by a licensed player. How > does DeCSS get > authority? > > Not really an answer, but a tactic: turn the question back on the judge, and point out that we have yet to determine how -anybody- gets authority at this point, and that is what we are attempting to ascertain. The judge then has to be lead through some of the issues that we have brought up in this thread about determining when authority is granted in the "normal" chain of events. If the point of authority transfer is -not- with the player, then DeCSS has a valid use for decryption given the presence of authority transferred at some other point in the chain (i.e. point of sale of DVD). -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 19:44:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22082 for dvd-discuss-outgoing; Mon, 20 Mar 2000 19:44:13 -0500 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA22079 for ; Mon, 20 Mar 2000 19:44:12 -0500 Received: from cdpage.com (ddsl195.dnvr.uswest.net [209.180.251.195]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id RAA06695 for ; Mon, 20 Mar 2000 17:57:51 -0800 (PST) Message-ID: <38D6D6BB.BD29050A@cdpage.com> Date: Mon, 20 Mar 2000 18:56:12 -0700 From: Dana Parker X-Mailer: Mozilla 4.72 [en] (Win95; I) X-Accept-Language: en,pdf MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS on TV References: <20000320234003.8391.qmail@web508.mail.yahoo.com> <20000320161044.D23385@cty-alum.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.computerworld.idg.com.au/CWT1997.nsf/cwtoday/DB6C6D9B3448ECE64A2568A00075454B?OpenDocument -- Dana J. Parker http://www.cdpage.com http://www.emediapro.net http://www.dvdpro.net mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 20:05:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26655 for dvd-discuss-outgoing; Mon, 20 Mar 2000 20:05:53 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA26652 for ; Mon, 20 Mar 2000 20:05:52 -0500 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA04076 for ; Mon, 20 Mar 2000 20:19:13 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] DeCSS on TV Date: Mon, 20 Mar 2000 20:18:20 -0600 Message-ID: <000701bf92db$ba48f5a0$df7945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <38D6D6BB.BD29050A@cdpage.com> X-MIMEOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's also on Slashdot. The Aussies will bring down the MPAA, apparently.. > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Dana Parker > Sent: Monday, March 20, 2000 7:56 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] DeCSS on TV > > > http://www.computerworld.idg.com.au/CWT1997.nsf/cwtoday/DB6C6D9B34 > 48ECE64A2568A00075454B?OpenDocument > > > > -- > Dana J. Parker > http://www.cdpage.com > http://www.emediapro.net > http://www.dvdpro.net > > mailto:danapark@ix.netcom.com > > > From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 20:52:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04657 for dvd-discuss-outgoing; Mon, 20 Mar 2000 20:52:00 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA04629 for ; Mon, 20 Mar 2000 20:51:58 -0500 Received: (qmail 11790 invoked from network); 21 Mar 2000 03:01:50 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 21 Mar 2000 03:01:50 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id TAA11719; Mon, 20 Mar 2000 19:05:44 -0800 Date: Mon, 20 Mar 2000 19:05:44 -0800 Message-Id: <200003210305.TAA11719@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: Point 3 reorganized, at rst's suggestion. > >> > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is >> > unconstitutional either as applied to DeCSS or on its face > a) puts too much burden on free speech > i) source code is speech > ii) object code is speech Object code is speech? Careful here, I'm not sure about this one. Try convincing me first. Publishing object code is an expedient to having every individual compile his own source (not difficult, standard unix tools automate this, DeCSS is small ernough doesn't take as long as a kernel compile. I would say though that if it were used in a discussion of say library conflicts, object code would be crucial to furthering discussion through experiment and observation. Not having certain tools (other than neurons) can hinder certain people from participating in the discussion. So rather than "object code is free speech" say "object code is lab material." Come up with a phrase better than "lab material" or Kaplan will eat you alive. Of course as I've said before anything that can be discussed is free speech, so you might only have some explaining to do. And yes it is possible to talk about programming and not have tools available at all times. Myself I don't bother with too many development packages on my Lintop. No room, too slow, no point. > iii) 1201 unsupported by the necessary legislative >findings for intermediate scrutiny (Turner I) > iv) takes away fair use (fair use is constitutionally >mandated to meet the copyright "delicate balance") > b) outside congressional power (Copyright or Commerce) > i) potentially unlimited times > ii) patent-like monopoly without the patent-requisite >disclosure > iii) engenders antitrust problems / copyright misuse > c) procedurally unsound > i) void for vagueness > ii) ex post facto effects > iii) impermissible delegation to private entities > >At 07:07 PM 3/20/00 -0500, rst@ai.mit.edu wrote: >>There's also the argument that 1201 is unconstitutional because it >>grants exclusive rights (within the scope of the Copyright/Patent >>clause) which extend indefinitely, violating "...for limited >>times...". >> >>BTW, to my untrained eye, e) seems to encompass a lot of the other >>arguments here (e.g., d, g, and h --- I take it that the arguments for >>these are that the Copyright and Commerce clauses don't permit, e.g., >>patent-like grants without disclosure). Add Innocent before proven guilty. >> >>rst > >wendy@seltzer.com >Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 21:09:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06251 for dvd-discuss-outgoing; Mon, 20 Mar 2000 21:09:44 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA06248 for ; Mon, 20 Mar 2000 21:09:43 -0500 Received: (qmail 12712 invoked from network); 21 Mar 2000 03:19:36 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 21 Mar 2000 03:19:36 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id TAA12635; Mon, 20 Mar 2000 19:23:29 -0800 Date: Mon, 20 Mar 2000 19:23:29 -0800 Message-Id: <200003210323.TAA12635@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org wrote: >On Mon, Mar 20, 2000 at 12:42:12PM -0800, Seth David Schoen wrote: >> Wendy Seltzer writes: >> >> > c) DeCSS not a "technology, product, service, device, component, >> > or part thereof" >> >> Incidentally, I think this is a fairly strong argument; I laugh whenever >> I read a plaintiff's attorney calling DeCSS a "circumvention device". >> That is not good use of terminology. >> >> Is a text editor a "device" for editing text files? > >Do you have any solid basis for stating that it isn't? > >"Device" strikes me as a perfectly acceptable generic term for legal purposes. > >So does "technology". Yep. Yes it does. The important thing is: Let not those words carry the woeful spectre of suggesting that the word technology = costs big bucks to build. Just because it's not normally heard in the vernacular doesn't it ain't true. Software is machinery and as people are starting to recognize, software can even be analogous physical laws (soft patents suck because they get in the way of this interpretartion). That's one of the reasons software is important. No longer do engineers have to fight with the laws of physics to get a particular device to work as needed. All they need to do in the physical world is make it run cool and stavble. The software takes care of manipulating the thing. However an argument for object code being crucial to free speech (I don't see it as free speech itself) is that it is used in experiment when one studies the workings of a software device. Now you might say the source falls in that category. Yes it does, but one might argue that without it a you cannot observe software failures bugs or other properties interactively which is a significant mode of learning. >Rob Warren >greslin@linuxpower.org >OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 21:29:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10843 for dvd-discuss-outgoing; Mon, 20 Mar 2000 21:29:11 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10840 for ; Mon, 20 Mar 2000 21:29:10 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA24008 for dvd-discuss@eon.law.harvard.edu; Mon, 20 Mar 2000 19:39:24 -0800 Date: Mon, 20 Mar 2000 19:39:23 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline Message-ID: <20000320193923.O23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003210305.TAA11719@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200003210305.TAA11719@ns1.filetron.com>; from rmarian@linuxstart.com on Mon, Mar 20, 2000 at 07:05:44PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian writes: > Wendy Seltzer wrote: > > Point 3 reorganized, at rst's suggestion. > > > >> > 3) If DeCSS doesn't fit within one of the exceptions, 1201 is > >> > unconstitutional either as applied to DeCSS or on its face > > a) puts too much burden on free speech > > i) source code is speech > > ii) object code is speech > > Object code is speech? Careful here, I'm not sure about this one. Try convincing me first. Publishing object code is an expedient to having every individual compile his own source (not difficult, standard unix tools automate this, DeCSS is small ernough doesn't take as long as a kernel compile. I would say though that if it were used in a discussion of say library conflicts, object code would be crucial to furthering discussion through experiment and observation. Not having certain tools (other than neurons) can hinder certain people from participating in the discussion. > > So rather than "object code is free speech" say "object code is lab material." Come up with a phrase better than "lab material" or Kaplan will eat you alive. Of course as I've said before anything that can be discussed is free speech, so you might only have some explaining to do. FRCP says (one of the few things I remember from when I read them a long time ago): A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency [...] Rule 8(e)(2). Thus, making (in good faith) a broad claim in an alternative defense should not hurt your overall defense at all. So, it seems to me that it's worthwhile to start with the broadest possible claims (well, some people don't want to make claims contrary to existing precedent, perhaps fearing Rule 11(b)(2)) and then go from there in alternatives. "Object code is protected speech. Even if object code is not protected speech, ..." I don't think the "lab materials" argument has much use in court, except as a part of the "DMCA is inconsistent with the Copyright Clause" argument: "Even if object code is not protected speech, object code which is capable of use to perform actions which may, for the purposes of argument, be considered unauthorized access or circumvention is necessary in many instances as a sort of 'lab material' for computer security research, beyond what would be permitted by the statute. Computer security research, as well as the development of security research techniques, is significantly harmed or chilled by the statute; this is inconsistent with the authority which forms the basis of the copyright power." > Add Innocent before proven guilty. Civil procedure. Alas. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Mar 20 23:44:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26210 for dvd-discuss-outgoing; Mon, 20 Mar 2000 23:44:20 -0500 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA26207 for ; Mon, 20 Mar 2000 23:44:19 -0500 Received: from mindspring.com (user-2ivf563.dialup.mindspring.com [165.247.148.195]) by smtp6.mindspring.com (8.9.3/8.8.5) with ESMTP id AAA22334 for ; Tue, 21 Mar 2000 00:57:42 -0500 (EST) Message-ID: <38D70E6B.BE37AD4A@mindspring.com> Date: Tue, 21 Mar 2000 00:53:47 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: > An attempt to organize in skeletal form the arguments we've been > making. Many of the early areas of discussion that we seem to have left > behind, such as reverse engineering or encryption research, still look > promising. Please add if I've left threads out. > > > 1) DeCSS doesn't circumvent > a) it permits use, not access - no 1201(a)(2) violation > b) the DVD owner already has authority to access > c) DeCSS doesn't give access, the player does I don't know if this was the thread you referring to Circumvention vs. Access thread or not, if so then it was my impression that: DeCSS either accesses or circumvents; DeCSS does access, not circumvent because of b) and it can not be conceived that DeCSS can be used with any thing other than a tangible DVD. I don't know what's up with c); DeCSS does decrypt an encrypted work, and I don't know what would be going on before access. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 00:14:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28612 for dvd-discuss-outgoing; Tue, 21 Mar 2000 00:14:17 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA28609 for ; Tue, 21 Mar 2000 00:14:16 -0500 Received: (qmail 1797 invoked by uid 60001); 21 Mar 2000 06:27:40 -0000 Message-ID: <20000321062740.1796.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Mon, 20 Mar 2000 22:27:40 PST Date: Mon, 20 Mar 2000 22:27:40 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] An Outline To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Rares Marian wrote: > So rather than "object code is free speech" say "object code is lab > material." Come up with a phrase better than "lab material" or > Kaplan will eat you alive. How about: "Judge Kaplan, the Appeals Court directly above you says "the legislative history leaves no doubt that Congress intended [computer programs] to be considered literary works." The case in which they said it has been cited so widely by other Circuits that the 'Altai test' is broadly accepted as settled law for how to examine the expression in computer programs published only in object code format. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 01:55:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32556 for dvd-discuss-outgoing; Tue, 21 Mar 2000 01:55:30 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32553 for ; Tue, 21 Mar 2000 01:55:29 -0500 Received: by dwaal.net (8.9.3/8.9.3) id JAA13101; Tue, 21 Mar 2000 09:08:53 +0100 (CET) Date: Tue, 21 Mar 2000 09:08:53 +0100 (CET) From: tser Message-Id: <200003210808.JAA13101@dwaal.net> To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain Content-Transfer-Encoding: 7bit X-Mailer: IMP/PHP3 Imap webMail Program 2.0.1 X-Originating-IP: 195.193.202.74 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu i think it's something good that php scripts crash, cause this one is someway milder then my previous message :o) We'r not here to flame war, but to protect the right to Watch DVD's, anywhere we want. Face it, in fact, we'r trying to support a DVD copy Tool, widly used by users all over the internet to Rip and Copy DVd's to VCD's. Used by Owners of Large Backup Medium Streamers, to Copy DVD's, they rent from the videorent store. Used inside University's, to transfer DVD's from one place to another. Used to share DVD's, to play them on gigacampuslan. Face reality. On the other end of the wall, it is Used, To do Hear the words, somebody spoke on those dvd's. To listen what they Said, And about having the right, to listen to that, on any place on earth there is, in any device. The physical protection of dvd's was never meant to be taken serious. 40 bits of protection, is just like laying 40 keys on a table, and asking a random bypasser to try those keys on the door he's standing in front of. By the 25th key - or the 39th acoording murphy's law - the door is opened. You don't protect something with 40 bits. You do that with a 1 megabit key, at least. And now, the same goverment, who don't allow that keys to exist, are standing in front of us. Guided by the Motion Pictures Team, Handing over evidence, about what worse things we humans did. And all we do is discussing notepads, not knowing that the other user was giving a example of a tool,who almost looked like a product, but not is a product, and itself is running linux. In this holy war between (unix) and the rest of the world, sometimes we are forgetting, that theft is also part of human nature. And now there is decss, which can be used both for evil, and good purpose. So let us lay down that OS war. This is not the place to fight that. They can co-exist. what i'm standing her for, is the right to communicate. The right to listen what peoples have recorded on a Dvd. That Saving-Private-Ryan move. I want to learn from the past, by playing it in my linux box. Then I want to Reboot. To Play Unreal on Windows., Cause, This world is Unreal. Reinder From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 02:57:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA03978 for dvd-discuss-outgoing; Tue, 21 Mar 2000 02:57:41 -0500 Received: from penguin.lvcm.com (root@penguin.lvcablemodem.com [24.234.57.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA03975 for ; Tue, 21 Mar 2000 02:57:39 -0500 Received: (from jedi@localhost) by penguin.lvcm.com (8.9.3/8.8.7) id BAA00561 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 01:12:50 -0800 From: JEDIDIAH Message-Id: <200003210912.BAA00561@penguin.lvcm.com> Subject: [dvd-discuss] Re: your mail To: dvd-discuss@eon.law.harvard.edu Date: Tue, 21 Mar 2000 01:12:44 -0800 (PST) In-Reply-To: <200003210808.JAA13101@dwaal.net> from "tser" at Mar 21, 2000 09:08:53 AM X-Mailer: ELM [version 2.5 PL1] MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > i think it's something good that php scripts crash, cause this one is someway > milder then my previous message :o) > > We'r not here to flame war, but to protect the right to Watch DVD's, anywhere > we want. Face it, in fact, we'r trying to support a DVD copy Tool, > widly used by users all over the internet to Rip and Copy DVd's to VCD's. > > Used by Owners of Large Backup Medium Streamers, to Copy DVD's, they rent from > the videorent store. > > Used inside University's, to transfer DVD's from one place to another. Used to > share DVD's, to play them on gigacampuslan. > > Face reality. To anyone with any piracy experience, this is simply absurd. Tools have long existed, and been available for the relatively casual pirate, to completely circumvent copy protection methods altogether by simply accessing media at the bit level. While it's true that the writing technology does not yet commonly exist to make dvd-console ready copies of such 'backups', software based dvd players and operating systems can be spoofed into believing that a file or set of files is actually a cdrom or dvdrom. Such spoofing tools have been available in the PC pirate community since as long as CDROM games have been common. CSS has never been the barrier that it was advertised to be. I think that the current litigation is as much an attempt to cover this up as anything else. > > On the other end of the wall, it is Used, To do Hear the words, somebody spoke > on those dvd's. To listen what they Said, And about having the right, to listen > to that, on any place on earth there is, in any device. > > > The physical protection of dvd's was never meant to be taken serious. 40 bits > of protection, is just like laying 40 keys on a table, and asking a random > bypasser to try those keys on the door he's standing in front of. By the 25th > key - or the 39th acoording murphy's law - the door is opened. > > You don't protect something with 40 bits. You do that with a 1 megabit key, at > least. > > And now, the same goverment, who don't allow that keys to exist, are standing > in front of us. Guided by the Motion Pictures Team, Handing over evidence, > about what worse things we humans did. > > And all we do is discussing notepads, not knowing that the other user was > giving a example of a tool,who almost looked like a product, but not is a > product, and itself is running linux. > > In this holy war between (unix) and the rest of the world, sometimes we are > forgetting, that theft is also part of human nature. > > And now there is decss, which can be used both for evil, and good purpose. > > So let us lay down that OS war. This is not the place to fight that. They can > co-exist. > > what i'm standing her for, is the right to communicate. The right to listen > what peoples have recorded on a Dvd. That Saving-Private-Ryan move. I want to > learn from the past, by playing it in my linux box. Then I want to Reboot. To > Play Unreal on Windows., > > Cause, > This world is Unreal. > Reinder > > > > > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 04:18:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA09513 for dvd-discuss-outgoing; Tue, 21 Mar 2000 04:18:54 -0500 Received: from mail.rdc1.sdca.home.com (imail@ha1.rdc1.sdca.home.com [24.0.3.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA09510 for ; Tue, 21 Mar 2000 04:18:52 -0500 Received: from home.com ([24.0.180.44]) by mail.rdc1.sdca.home.com (InterMail v4.01.01.00 201-229-111) with ESMTP id <20000321103215.RAGC14303.mail.rdc1.sdca.home.com@home.com> for ; Tue, 21 Mar 2000 02:32:15 -0800 Message-ID: <38D7501C.3FF60E5E@home.com> Date: Tue, 21 Mar 2000 02:34:04 -0800 From: Phillip Franklin Organization: Phillip Franklin Multimedia X-Mailer: Mozilla 4.61 [en]C-AtHome0407 (Win95; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Control v. Piracy References: <200003210912.BAA00561@penguin.lvcm.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's my opinion that CSS is much less about piracy than market control. The MPAA is mostly interested in controlling the format for the growing and most profitable market of home based entertainment media. By being able to control the format they insure that every aspect of distribution will be controlled. As Sony (& Phillips) had control of the CD audio music format for two decades their stature in the industry grew from a manufacturer of electronic goods to a major player in content distribution. Microsoft is the richest company in the world simply because of it's power in controlling the most popular OS. I'm sure Windows 2000 will be pirated to a high degree but it really does not affect MS's bottom line and valuation. Those who steal usually would never be paying customers anyway. If any lesson should be learned since 1981 is that we can't let one company or group control the market for every one else. We should all have an equal voice in setting standards that work best all of us. CSS has become a model for very rich companies and trade associations to buy the standards from the U. S. Congress. There are no real benefits for anyone except the MPAA in their pursuit of control of the DVD format and the future of multimedia playback standards. Phillip Franklin From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 08:27:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA31518 for dvd-discuss-outgoing; Tue, 21 Mar 2000 08:27:17 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA31514 for ; Tue, 21 Mar 2000 08:27:16 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id JAA04612 for ; Tue, 21 Mar 2000 09:40:37 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA20842; Tue, 21 Mar 2000 09:40:36 -0500 (EST) Date: Tue, 21 Mar 2000 09:40:36 -0500 (EST) Message-Id: <200003211440.JAA20842@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu In-Reply-To: <200003210808.JAA13101@dwaal.net> References: <200003210808.JAA13101@dwaal.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tser@dwaal.net writes: > The physical protection of dvd's was never meant to be taken > serious. 40 bits of protection, is just like laying 40 keys on a > table, and asking a random bypasser to try those keys on the door > he's standing in front of. By the 25th key - or the 39th acoording > murphy's law - the door is opened. > > You don't protect something with 40 bits. You do that with a 1 > megabit key, at least. Since some nontechnical people on the list might take this part literally, I thought I'd correct the numbers. The number of keys in a 40 bit keyspace is two to the fortieth power, which is somewhat in excess of one quadrillion (ten to the twelfth). If you want to do an exhaustive search of a 40 bit keyspace, you're looking through a stack of about one quadrillion keys, not forty. Modern computers are fast enough that this is feasible for just about anybody with a little money to spend, but it's not trivial (if you can check a million keys a second, it still takes more than a week to search the space completely). What makes CSS laughable by the standards of modern crypto is that you don't need to do anything like a full exhaustive search of the keyspace --- due to flaws in the algorithm, there's a known plaintext attack which requires only 2^16 guesses (a bit over 65,000) to find the key. (I'm going by my recollection of Frank Stevenson's analysis here, but I'm sure he'll correct me if I blew it). As to megabit keys, I've never heard of anyone actually using a key that large --- even in public-key systems, where key lengths are generally a lot longer for technical reasons, the real paranoids use keys that are a few thousand bits long, not millions... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 09:02:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA11971 for dvd-discuss-outgoing; Tue, 21 Mar 2000 09:02:22 -0500 Received: from hotmail.com (law2-f108.hotmail.com [216.32.181.108]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA11968 for ; Tue, 21 Mar 2000 09:02:21 -0500 Received: (qmail 83642 invoked by uid 0); 21 Mar 2000 15:15:16 -0000 Message-ID: <20000321151516.83641.qmail@hotmail.com> Received: from 206.245.149.133 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 07:15:15 PST X-Originating-IP: [206.245.149.133] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: Technology Date: Tue, 21 Mar 2000 10:15:15 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "Robert S. Thau" >tser@dwaal.net writes: > > The physical protection of dvd's was never meant to be taken > > serious. How can you say this foolishness with a straight face? One of the primary reasons that the anti-circumvention provisions of the DMCA were enacted was so that protections like those on DVDs were taken seriously. The protection is taken seriously not because it is unbreakable, but because it is there, and Congress (in the DMCA) stated that it is to be taken seriously. One may argue that Congress shouldn't have done this or doesn't have the authority under the law to do this. > > You don't protect something with 40 bits. You do that with a 1 > > megabit key, at least. Your point is analogous to stating that it is no crime to break into a person's home, where the person does not have the best possible lock on his door. If this were the case, there would never be a violation of the DMCA, as long as decryption technology keeps pace with encryption technology. On a very basic level, the anti-circumvention provisions are analogous to a breaking and entering statute. > >Since some nontechnical people on the list might take this part >literally, I thought I'd correct the numbers. > >The number of keys in a 40 bit keyspace is two to the fortieth power, >which is somewhat in excess of one quadrillion (ten to the twelfth). >If you want to do an exhaustive search of a 40 bit keyspace, you're >looking through a stack of about one quadrillion keys, not forty. >Modern computers are fast enough that this is feasible for just about >anybody with a little money to spend, but it's not trivial (if you can >check a million keys a second, it still takes more than a week to >search the space completely). > >What makes CSS laughable by the standards of modern crypto is that you >don't need to do anything like a full exhaustive search of the >keyspace --- due to flaws in the algorithm, there's a known plaintext >attack which requires only 2^16 guesses (a bit over 65,000) to find >the key. (I'm going by my recollection of Frank Stevenson's analysis >here, but I'm sure he'll correct me if I blew it). > >As to megabit keys, I've never heard of anyone actually using a key >that large --- even in public-key systems, where key lengths are >generally a lot longer for technical reasons, the real paranoids use >keys that are a few thousand bits long, not millions... > >rst ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 09:10:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14169 for dvd-discuss-outgoing; Tue, 21 Mar 2000 09:10:37 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA14166 for ; Tue, 21 Mar 2000 09:10:35 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA08448 for ; Tue, 21 Mar 2000 09:23:54 -0600 Date: Tue, 21 Mar 2000 09:23:54 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology In-Reply-To: <20000321151516.83641.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 21 Mar 2000, Joshua Daub wrote: > > > The physical protection of dvd's was never meant to be taken > > > serious. > How can you say this foolishness with a straight face? One of the primary > reasons that the anti-circumvention provisions of the DMCA were enacted was > so that protections like those on DVDs were taken seriously. The protection > is taken seriously not because it is unbreakable, but because it is there, > and Congress (in the DMCA) stated that it is to be taken seriously. I'm not going to go so far as to say the intention of the DMCA was to protect DVD's because I think they had somewhat different purposes in mind. What I will say though is that the whole 40-bit isn't real encryption argument has big holes in it. Remember that the government had restrictions on the key length of the encryption that was legal to export. That's why they used 40 bit keys. I'm sure if they had their druthers, they'd be using 4096 bit keys and a strong proven algorithm. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 09:25:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18441 for dvd-discuss-outgoing; Tue, 21 Mar 2000 09:25:49 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA18438 for ; Tue, 21 Mar 2000 09:25:48 -0500 Received: (qmail 16790 invoked by uid 502); 21 Mar 2000 15:40:56 -0000 Date: Tue, 21 Mar 2000 10:40:56 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Message-ID: <20000321104056.D16417@linuxpower.org> References: <20000321151516.83641.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Steve Stearns on Tue, Mar 21, 2000 at 09:23:54AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 09:23:54AM -0600, Steve Stearns wrote: > On Tue, 21 Mar 2000, Joshua Daub wrote: > > > > > The physical protection of dvd's was never meant to be taken > > > > serious. > > How can you say this foolishness with a straight face? One of the primary > > reasons that the anti-circumvention provisions of the DMCA were enacted was > > so that protections like those on DVDs were taken seriously. The protection > > is taken seriously not because it is unbreakable, but because it is there, > > and Congress (in the DMCA) stated that it is to be taken seriously. > > I'm not going to go so far as to say the intention of the DMCA was to > protect DVD's because I think they had somewhat different purposes in > mind. What I will say though is that the whole 40-bit isn't real > encryption argument has big holes in it. Actually it isn't even an argument. For 1201 purposes the strength of the algorithm (and the size of the keyspace) doesn't matter, because none of that is tied into the legal definition of "effective" (i.e., an "effective" protection method). DVD's could be "encrypted" with a simple 1-byte XOR and legally that would still constitute an "effective" method of protection under the definitions outlined in 17 USC 1201. See FAQ 2.4.8. Rob Warren greslin@linuxpower.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 09:42:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20842 for dvd-discuss-outgoing; Tue, 21 Mar 2000 09:42:07 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA20839 for ; Tue, 21 Mar 2000 09:42:06 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id KAA14976 for ; Tue, 21 Mar 2000 10:55:32 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA21227; Tue, 21 Mar 2000 10:55:31 -0500 (EST) Date: Tue, 21 Mar 2000 10:55:31 -0500 (EST) Message-Id: <200003211555.KAA21227@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: Technology In-Reply-To: <20000321151516.83641.qmail@hotmail.com> References: <20000321151516.83641.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub writes: > >From: "Robert S. Thau" > >tser@dwaal.net writes: > > > The physical protection of dvd's was never meant to be taken > > > serious. > > How can you say this foolishness with a straight face? I didn't. That's the person to whom I was responding. > One of the primary reasons that the anti-circumvention provisions > of the DMCA were enacted was so that protections like those on DVDs > were taken seriously. The protection is taken seriously not > because it is unbreakable, but because it is there, and Congress > (in the DMCA) stated that it is to be taken seriously. Hmmm... one of the key points of Ian Hay's line of argument, as I understand it, is that the DMCA was *not* intended to support access controls like those on DVDs, where he argues that access is authorized at the point of sale, but only to provide, e.g., "protection against unauthorized access to one-time-only transmissions of audiovisual or other works over the internet". He cites the legislative history in http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt in support of his position. I'm sure I'm not the only person on this list who'd like to know on what basis you disagree... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 09:54:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21800 for dvd-discuss-outgoing; Tue, 21 Mar 2000 09:54:10 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA21768 for ; Tue, 21 Mar 2000 09:54:06 -0500 Received: (qmail 9355 invoked by uid 60001); 21 Mar 2000 16:07:31 -0000 Message-ID: <20000321160731.9354.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Tue, 21 Mar 2000 08:07:31 PST Date: Tue, 21 Mar 2000 08:07:31 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Re: To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- tser wrote: > We'r not here to flame war, but to protect the right to Watch DVD's, > anywhere we want. Face it, in fact, we'r trying to support a DVD copy > Tool, widly used by users all over the internet to Rip and Copy DVd's to > VCD's. Is there any actual evidence of these folks using DeCSS? Weren't they around before DeCSS? Are you suggesting that the siblings of DeCSS will not be used for simple viewing of purchased DVD's? Does the DMCA's ban on distributing circumvention tools make it any easier to stop these pirates? After all, they're distributing infringed works. It seems that a law to attack their tools is sort of like passing more gun laws in 'the wake of Columbine' - it just bothers more honest citizens, while the criminals, who by definition don't obey the laws anyway, pay no attention. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:00:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22557 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:00:19 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA22554 for ; Tue, 21 Mar 2000 10:00:16 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id KAA10757 for ; Tue, 21 Mar 2000 10:13:41 -0600 Date: Tue, 21 Mar 2000 10:13:41 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: In-Reply-To: <20000321160731.9354.qmail@web507.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Does the DMCA's ban on distributing circumvention tools make it any > easier to stop these pirates? After all, they're distributing infringed > works. It seems that a law to attack their tools is sort of like > passing more gun laws in 'the wake of Columbine' - it just bothers more > honest citizens, while the criminals, who by definition don't obey the > laws anyway, pay no attention. DeCSS doesn't pirate DVD's, people pirate DVD's :) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:21:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25893 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:21:45 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA25890 for ; Tue, 21 Mar 2000 10:21:44 -0500 Received: by dwaal.net (8.9.3/8.9.3) id RAA14585; Tue, 21 Mar 2000 17:35:01 +0100 (CET) Date: Tue, 21 Mar 2000 17:35:01 +0100 (CET) From: tser Message-Id: <200003211635.RAA14585@dwaal.net> To: dvd-discuss@eon.law.harvard.edu References: In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain Content-Transfer-Encoding: 7bit X-Mailer: IMP/PHP3 Imap webMail Program 2.0.1 X-Originating-IP: 195.193.202.74 Subject: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu See also Wired.com http://www.wired.com/news/technology/0,1282,35028,00.html Developed in China by Visual Disc and Digital Video Corp. (VDDV) and sold in the United States by Apex Digital Inc, the Apex player is attracting attention for reasons besides its low price of US$169.95. Unlike other DVD players, the Apex can play DVD movies created anywhere in the world. Regions are assigned specific numbers so, for example, DVDs created in Region 1 –- the United States -– can only be played in that area. But by accessing a hidden menu in the Apex player, users can turn off regional encoding. The player also has the ability to remove the DVD Content Scrambling System (CSS). Doing so enables users to copy DVDs, similar to the functionality of the much-maligned DeCSS utility. The CSS removal option has piqued the interest of the MPAA. "We are currently looking at the player to determine whether any action is warranted," said Emily Cutner, a spokeswoman for the MPAA. The DVD player is also the first in the United States to support the controversial MP3 secure music format. Users can insert a CD-ROM full of MP3 files and the player brings up a menu on the television to play back the songs. Hidden features included in a DVD player released in January have the Motion Picture Association of America contemplating legal action. Thanks to Nerdout.com, both users and the MPAA are aware that the Apex AD-600A player's DVD copyright protection scheme and regional encoding features can be overridden. The Recording Industry Association of America (RIAA) -- which has sued MP3.com, declaring the MP3 format a copyright violation -- was unaware of the Apex player and its capabilities and declined to comment. Apex's maker said the ability to remove regional encoding and CSS protection were included but were intended only for developers. End users were not supposed to be able to access that menu or those features. "Twenty-four manufacturers use the same menu chip as in ours, so they all have the same capability," said Colton Manley, a spokesman for Apex, in Ontario, California. "Certainly our intention is not to sell anything that will cause any problems." But users are reacting positively. "I have no complaints! It's been running like a charm. It really is worth the purchase, you get a lot of bang for your buck," said one person on the alt.video.dvd newsgroup. "So far I'm impressed with it. It produces a great picture, and combined with the ability to turn off region locks and macrovision, it's a real winner!" said another newsgroup posting. Still, Apex officials said the next version of the Apex DVD player will have the hidden menu disabled. The company is also planning to release three new DVD players as well as a car player with the same features as the AD-600A. The MD-100 will fit in a car radio slot and feature DVD, CD, and MP3 playback plus standard AM and FM playback. Apex expects its biggest potential market will be people who drive SUVs, where manufacturers have been installing television sets in the back seat. The MD-100 will be available next month for $499. The company is still working on getting it into retail outlets. (copyed from wired.com) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:25:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA26352 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:25:12 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA26349 for ; Tue, 21 Mar 2000 10:25:10 -0500 Received: (qmail 29529 invoked by uid 60001); 21 Mar 2000 16:38:32 -0000 Message-ID: <20000321163832.29528.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Tue, 21 Mar 2000 08:38:32 PST Date: Tue, 21 Mar 2000 08:38:32 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: Technology To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > How can you say this foolishness with a straight face? One of the > primary reasons that the anti-circumvention provisions of the > DMCA were enacted was so that protections like those on > DVDs were taken seriously. The protection is taken seriously not > because it is unbreakable, but because it is there, > and Congress (in the DMCA) stated that it is to be taken seriously. > > One may argue that Congress shouldn't have done this or doesn't have > the authority under the law to do this. The most annoying thing about this whole thing is that by passing a law that protects weak encryption systems the progress of encryption science is thereby denied the wind of market forces in it's sails. Cryptology played a major role in winning WWII, and should play a major role in providing a secure foundation for an E-commerce based society. Unfortunately, laws that seek to protect inferior cryptological results cause profound damage to society. Instead of letting demand fund great research in the science, Congress has subverted the free market for the short term benefit of a few monied intersests. The MPAA made a business decision that it was cheaper to buy a law to protect their products that it was to buy a good cryptology department. Sadly, the US Congress proved again that the interests of consumers in keeping an expansive public domain so as to promote the progress of science carry no weight in our corporatist form of government. This law is wholely unneeded and actually HARMS the very interests it seeks to protect. Can anyone say with a straight face that Congress was trying to promote the progress of science by passing this law? How would you explain this to a graduate student who wants to study cryptology but can't get a grant? The only solution that I see to this is to cut off Congress's vice at it's source: the commerce power. Since the great depression, the commerce power has been misconstrued as a near boundless authority. All the popular talk about 'campaign finance reform' is a farce. The problem is not that rich interests seek to buy commercial favors from Congress - it is that Congress has commercial favors to give. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:36:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA28235 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:36:37 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA28201 for ; Tue, 21 Mar 2000 10:36:35 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA21302 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 10:49:59 -0600 Date: Tue, 21 Mar 2000 10:49:59 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu Message-ID: <20000321104959.A21264@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003211635.RAA14585@dwaal.net> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1us In-Reply-To: <200003211635.RAA14585@dwaal.net>; from tser@dwaal.net on Tue, Mar 21, 2000 at 05:35:01PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can't believe how inaccurate this article is. The player can: - play mp3 (music) from CDROM (or CD-R...) - disable Macrovision on output - change region codes easily In addition, you can turn off CSS decryption. This has no purpose, other than perhaps discovering which discs are encrypted and which aren't. It does not have, as the article implies, any way to retrieve decrypted data from the disc in digital form. Again, this is just plain wrong. Eric On Tue, Mar 21, 2000 at 05:35:01PM +0100, tser wrote: > See also Wired.com http://www.wired.com/news/technology/0,1282,35028,00.html > > Developed in China by Visual Disc and Digital Video Corp. (VDDV) and sold in > the United States by Apex Digital Inc, the Apex player is attracting attention > for reasons besides its low price of US$169.95. > > Unlike other DVD players, the Apex can play DVD movies created anywhere in the > world. Regions are assigned specific numbers so, for example, DVDs created in > Region 1 –- the United States -– can only be played in that area. But by > accessing a hidden menu in the Apex player, users can turn off regional > encoding. > > The player also has the ability to remove the DVD Content Scrambling System > (CSS). Doing so enables users to copy DVDs, similar to the functionality of the > much-maligned DeCSS utility. > > The CSS removal option has piqued the interest of the MPAA. > > "We are currently looking at the player to determine whether any action is > warranted," said Emily Cutner, a spokeswoman for the MPAA. > > The DVD player is also the first in the United States to support the > controversial MP3 secure music format. Users can insert a CD-ROM full of MP3 > files and the player brings up a menu on the television to play back the songs. > Hidden features included in a DVD player released in January have the Motion > Picture Association of America contemplating legal action. > Thanks to Nerdout.com, both users and the MPAA are aware that the Apex AD-600A > player's DVD copyright protection scheme and regional encoding features can be > overridden. > > The Recording Industry Association of America (RIAA) -- which has sued MP3.com, > declaring the MP3 format a copyright violation -- was unaware of the Apex > player and its capabilities and declined to comment. > > Apex's maker said the ability to remove regional encoding and CSS protection > were included but were intended only for developers. End users were not > supposed to be able to access that menu or those features. > > "Twenty-four manufacturers use the same menu chip as in ours, so they all have > the same capability," said Colton Manley, a spokesman for Apex, in Ontario, > California. "Certainly our intention is not to sell anything that will cause > any problems." > > But users are reacting positively. > > "I have no complaints! It's been running like a charm. It really is worth the > purchase, you get a lot of bang for your buck," said one person on the > alt.video.dvd newsgroup. > > "So far I'm impressed with it. It produces a great picture, and combined with > the ability to turn off region locks and macrovision, it's a real winner!" said > another newsgroup posting. > > Still, Apex officials said the next version of the Apex DVD player will have > the hidden menu disabled. > > The company is also planning to release three new DVD players as well as a car > player with the same features as the AD-600A. The MD-100 will fit in a car > radio slot and feature DVD, CD, and MP3 playback plus standard AM and FM > playback. > > Apex expects its biggest potential market will be people who drive SUVs, where > manufacturers have been installing television sets in the back seat. The MD-100 > will be available next month for $499. The company is still working on getting > it into retail outlets. > > (copyed from wired.com) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:36:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA28274 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:36:49 -0500 Received: from web506.mail.yahoo.com (web506.mail.yahoo.com [128.11.68.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA28266 for ; Tue, 21 Mar 2000 10:36:42 -0500 Received: (qmail 13250 invoked by uid 60001); 21 Mar 2000 16:50:01 -0000 Message-ID: <20000321165001.13249.qmail@web506.mail.yahoo.com> Received: from [131.44.121.4] by web506.mail.yahoo.com; Tue, 21 Mar 2000 08:50:01 PST Date: Tue, 21 Mar 2000 08:50:01 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: Technology To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- greslin@linuxpower.org wrote: > On Tue, Mar 21, 2000 at 09:23:54AM -0600, Steve Stearns wrote: > Actually it isn't even an argument. For 1201 purposes the strength > of the algorithm (and the size of the keyspace) doesn't matter, because > none of that is tied into the legal definition of "effective" (i.e., an > "effective" protection method). DVD's could be "encrypted" with a > simple 1-byte XOR and legally that would still constitute > an "effective" method of protection under the definitions outlined in 17 > USC 1201. Actually, it REALLY isn't an arguement. An "effective" protection method simply would not be crackable in the real world. The DMCA has no other purpose than to support inferior encryption technology. This is the same oxymoronic idea that lead to the ban on exporting strong encryption: that the best way to acheive security is to promote and protect weakness. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:42:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29670 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:42:43 -0500 Received: from dial67.roadrunner.com (dial67.cybermesa.com [209.12.75.67]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA29639 for ; Tue, 21 Mar 2000 10:42:39 -0500 Received: (from paul@localhost) by dial67.roadrunner.com (8.8.7/8.8.7) id JAA00984 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 09:59:28 -0700 Date: Tue, 21 Mar 2000 09:59:28 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321095927.A499@localhost> References: <200003210323.TAA12635@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200003210323.TAA12635@ns1.filetron.com>; from rmarian@linuxstart.com on Mon, Mar 20, 2000 at 07:23:29PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Mar 20, 2000 at 07:23:29PM -0800, Rares Marian wrote: > greslin@linuxpower.org wrote: > > >On Mon, Mar 20, 2000 at 12:42:12PM -0800, Seth David Schoen wrote: > >> Wendy Seltzer writes: > >> > >> > c) DeCSS not a "technology, product, service, device, > >> > component, or part thereof" > >> > >> Incidentally, I think this is a fairly strong argument; I laugh whenever > >> I read a plaintiff's attorney calling DeCSS a "circumvention device". > >> That is not good use of terminology. > >> > >> Is a text editor a "device" for editing text files? > > > >Do you have any solid basis for stating that it isn't? > > > >"Device" strikes me as a perfectly acceptable generic term for legal > > purposes. > > > >So does "technology". > > Yep. Yes it does. The important thing is: Let not those words carry > the woeful spectre of suggesting that the word technology = costs big > bucks to build. > > Just because it's not normally heard in the vernacular doesn't it ain't true. > > Software is machinery and as people are starting to recognize, software > can even be analogous physical laws (soft patents suck because they get > in the way of this interpretartion). That's one of the reasons software > is important. No longer do engineers have to fight with the laws of > physics to get a particular device to work as needed. All they need to > do in the physical world is make it run cool and stavble. The software > takes care of manipulating the thing. I'll take the bait. The legal definition of "device" had better have something to do with the real-world situation. The device is the hardware. Hardware means silicon doped with phosphorous, boron, arsenic; aluminum or copper wiring, germanium-silicon junctions, SiO_2, etc. This hardware is a general-pupose computer. The instructions for how to operate the device are not themselves a device. The computer program is just that, a "program," just like you'd receive at the door to a play --- a description of the events to follow. To a first approximation, the actors in this case are electrons and holes in semiconductors, and electrons in the metal wiring between junctions. Op-codes, object files, and high-level languages are not actors, they are instructions, pure and simple. >From a legal stand-point we are arguing in circles because the patent on a process vs. copyright on expression "dichotomy" was blown sky-high by the invention of the general-purpose computer. The entire point of the programmable general-purpose computer is to get as close as possible to eliminating the distinction between describing a process and doing the process. This still leaves me objecting to calling a program a "device." > However an argument for object code being crucial to free speech (I don't > see it as free speech itself) is that it is used in experiment when one > studies the workings of a software device. Now you might say the source > falls in that category. Yes it does, but one might argue that without it a > you cannot observe software failures bugs or other properties interactively > which is a significant mode of learning. This is connected to the argument the government has made in Bernstein. They want to make a functional vs. speech distinction. This argument is at least as dangerous as it has always been, and in my opinion is worse now than before the invention of the programmable computer. One of the classical speech vs. action arguments is "shouting fire" in a crowded theater. People could be injured two ways in this situation. 1. People could be burned. 2. People could be trampled because some of the people in the theater are afraid of being burned. This example has always driven my engineering sensibilities crazy. Any occupied building can burn, the question is how fast. The problem in the case of a theater is that the building can turn into a raging inferno much faster than people can exit the building. To take an engineering failure, and then limit speech based on that failure might be acceptable as a short-term remedy until the engineers can get their act together, but as a permanent prohibition, it makes no sense. The "action" side of this speech only results because of a faulty building design, not because of the speech per se. Because programmable computers are intended to blur the distinction between a process and description of a process, any limits on speech as being "too functional" will have very bad long-term repercussions. Is that postscript document functional (it is a set of command for drawing on a screen or piece of paper), or is it expressive (when the instructions for drawing on the page are finished, one has expressive material in a natural language)? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:49:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA30360 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:49:36 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA30357 for ; Tue, 21 Mar 2000 10:49:34 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id LAA13126 for ; Tue, 21 Mar 2000 11:02:57 -0600 Date: Tue, 21 Mar 2000 11:02:57 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology In-Reply-To: <20000321165001.13249.qmail@web506.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Somehow I don't think arguing the semantics of the word "effective" are going to get us much of anywhere. Effective in this context means that an effort was made to protect the content. There's no definition of how much effort has to be made, and I don't think it matters much. If effective was intended to mean strong quality encryption, then the law would be totally ineffectual. If the encryption was "effective" in the sense of being unbreakable, then the law would be entirely pointless. I mean had the DVD encryption been hyper-mega-bit-super-heavy-duty-double-super-secret-RSA with the Kung Fu grip encryption, we wouldn't be able to crack it and the law would never be used. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 10:58:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA32387 for dvd-discuss-outgoing; Tue, 21 Mar 2000 10:58:05 -0500 Received: from hotmail.com (law2-f176.hotmail.com [216.32.181.176]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA32384 for ; Tue, 21 Mar 2000 10:58:03 -0500 Received: (qmail 10601 invoked by uid 0); 21 Mar 2000 17:10:50 -0000 Message-ID: <20000321171050.10600.qmail@hotmail.com> Received: from 206.245.149.133 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 09:10:50 PST X-Originating-IP: [206.245.149.133] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Date: Tue, 21 Mar 2000 12:10:50 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Can anyone say with a straight face that Congress was trying to promote >the progress of science by passing this law? How would you explain this >to a graduate student who wants to study cryptology but can't get a >grant? I fail to see more than a miniscule relation between funding for encryption research at the graduate school level, and a law that protects CSS, even if CSS was the weakest encryption scheme of all time. If the market wants better encryption, the market will get better encryption. The DMCA merely probibits the market from obtaining better encryption at the expense of a copyright owner's encryption scheme, except under certain circumstances (those circumstances being the narrow exception for good faith encryption research). >The only solution that I see to this is to cut off Congress's vice at >it's source: the commerce power. Since the great depression, the >commerce power has been misconstrued as a near boundless authority. If you are prepared to restrict the commerce clause, are you prepared to find new authority for Civil Rights legislation? Congress often used and continues to use the commerce clause as its authority for enacting anti-discrimination laws. However, if you truly believe this, might I suggest you vote for George Bush in November. Bush's nominees to the Supreme Court are more likely to restrict commerce clause jurisprudence. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 11:03:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00640 for dvd-discuss-outgoing; Tue, 21 Mar 2000 11:03:19 -0500 Received: from hotmail.com (law2-f75.hotmail.com [216.32.181.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA00636 for ; Tue, 21 Mar 2000 11:03:18 -0500 Received: (qmail 55732 invoked by uid 0); 21 Mar 2000 17:16:12 -0000 Message-ID: <20000321171612.55731.qmail@hotmail.com> Received: from 206.245.149.133 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 09:16:12 PST X-Originating-IP: [206.245.149.133] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Date: Tue, 21 Mar 2000 12:16:12 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Steve Stearns >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] Re: Technology >Date: Tue, 21 Mar 2000 11:02:57 -0600 (CST) > >Somehow I don't think arguing the semantics of the word "effective" are >going to get us much of anywhere. Effective in this context means that an >effort was made to protect the content. There's no definition of how much >effort has to be made, and I don't think it matters much. If effective >was intended to mean strong quality encryption, then the law would be >totally ineffectual. If the encryption was "effective" in the sense of >being >unbreakable, then the law would be entirely pointless. I mean had the DVD >encryption been hyper-mega-bit-super-heavy-duty-double-super-secret-RSA >with the Kung Fu grip encryption, we wouldn't be able to crack it and the >law would never be used. > >---Steve > I could not have said it better myself. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 11:06:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01264 for dvd-discuss-outgoing; Tue, 21 Mar 2000 11:06:35 -0500 Received: from web507.mail.yahoo.com (web507.mail.yahoo.com [128.11.68.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA01260 for ; Tue, 21 Mar 2000 11:06:33 -0500 Received: (qmail 21697 invoked by uid 60001); 21 Mar 2000 17:19:58 -0000 Message-ID: <20000321171958.21696.qmail@web507.mail.yahoo.com> Received: from [131.44.121.4] by web507.mail.yahoo.com; Tue, 21 Mar 2000 09:19:58 PST Date: Tue, 21 Mar 2000 09:19:58 -0800 (PST) From: Bryan Taylor Subject: [dvd-discuss] Paracopyright To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's some more support from the legislative history that the anticircumvention provisions are simply NOT copyright protection. This raises serious Constitutional questions, since the copyright clause is both a grant and a limitation on Congressional power. Mr. Bliley's Comments in the Congressional Record http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt August 4, 1998 (House) - cr04au98-101: "It also became apparent that the main provisions of the treaties to be implemented have little to do with copyright law. In fact, the ``anti- circumvention'' provisions of the Administration's bill created entirely new rights for content providers that are wholly divorced from copyright law. These new provisions (and the accompanying penalty provisions for violations of them) would be separate from, and cumulative to, the claims available to copyright owners under the Copyright Act." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 11:25:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06408 for dvd-discuss-outgoing; Tue, 21 Mar 2000 11:25:55 -0500 Received: from web505.mail.yahoo.com (web505.mail.yahoo.com [128.11.68.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA06405 for ; Tue, 21 Mar 2000 11:25:53 -0500 Received: (qmail 16594 invoked by uid 60001); 21 Mar 2000 17:39:17 -0000 Message-ID: <20000321173917.16593.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Tue, 21 Mar 2000 09:39:17 PST Date: Tue, 21 Mar 2000 09:39:17 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Paracopyright To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I found more support also, for the concept I call "fair access". This is to paracopyright as "fair use" is to copyright. From his comments below, it is absolutely clear that such a concept was not only accepted by Congress, it was DEMANDED by Congress. Bliley uses "fair use" to refer to what I call "fair access". I use the later term because it eliminates confusion and the arguement that we are misapplying "fair use". Of course, from Bliley's comments it's clear there IS fair use in the context of paracopyright. --- Bryan Taylor wrote: > Mr. Bliley's Comments in the Congressional Record > http://eon.law.harvard.edu/openlaw/DVD/dmca/cr04au98h.txt > August 4, 1998 (House) - cr04au98-101: >From the same source" " The Committee considered it particularly important to ensure that the concept of fair use would remain firmly established in the law. Section 1201(a)(1) is one of the most important provisions of this legislation, and one that must be included in any version of this bill eventually sent to the President for signature. It was crafted by the Commerce Committee to protect ``fair use'' and other users of information now lawful under the Copyright Act. Let us make no mistake about the scope of what we are doing here today in adopting H.R. 2281, about the tremendously powerful new right to control access to information that we are granting to information owners for the very first time. If left unqualified, this new right, as the Commerce Committee heard in testimony from the public and private sectors alike, could well prove to be the legal foundation for a society in which information becomes available only on a ``pay-per-use'' basis. That's why this bill assures that institutions like schools and libraries, and the public, will have an opportunity in a credible and permanent process to make the case that the new right we've adopted is interfering with fair use and other rights now enjoyed by information users under current law. Moreover, the Commerce Committee's report, I note for the record makes clear that the showing that must be made in this process is not intended to be unduly burdensome for either institutions or the public. Indeed, the Committee took pains to make clear that evidence of loss of access to a ``particular class of works''--intended to be gauged narrowly--would result in relief from the prohibition otherwise imposed on access to information by this legislation." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 12:22:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA21564 for dvd-discuss-outgoing; Tue, 21 Mar 2000 12:22:53 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA21561 for ; Tue, 21 Mar 2000 12:22:53 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id NAA06668 for ; Tue, 21 Mar 2000 13:36:18 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA22130; Tue, 21 Mar 2000 13:36:17 -0500 (EST) Date: Tue, 21 Mar 2000 13:36:17 -0500 (EST) Message-Id: <200003211836.NAA22130@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright In-Reply-To: <20000321173917.16593.qmail@web505.mail.yahoo.com> References: <20000321173917.16593.qmail@web505.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor quotes Rep. Bliley from the Congressional Record, on the new rights established by the DMCA: > If left unqualified, this new right, as the Commerce Committee heard > in testimony from the public and private sectors alike, could well > prove to be the legal foundation for a society in which information > becomes available only on a ``pay-per-use'' basis. That's why this bill > assures that institutions like schools and libraries, and the public, > will have an opportunity in a credible and permanent process to make > the case that the new right we've adopted is interfering with fair use > and other rights now enjoyed by information users under current law. > Moreover, the Commerce Committee's report, I note for the record makes > clear that the showing that must be made in this process is not > intended to be unduly burdensome for either institutions or the public. > Indeed, the Committee took pains to make clear that evidence of loss of > access to a ``particular class of works''--intended to be gauged > narrowly--would result in relief from the prohibition otherwise imposed > on access to information by this legislation." Bliley earlier cites 1201(a) as responding to the need for statutory support for what he's calling "fair use" here (what Bryan calls "fair access"). However, while 1201(a) does establish several cases in which libraries and other institutions have the right to circumvent access controls, it's not clear (to my untrained eye, at least) how they are supposed to obtain the technical tools required to exercise that right, without somebody violating 1201(b) somewhere along the line --- the 1201(a) circumvention ban has statutory exceptions which are designed to support "fair access", but, as far as I can see (and I hope someone will correct me if I'm wrong), the 1201(b) trafficking ban does not. In fact, 1201(d)(4) seems to me to reemphasize that nonprofit libraries, etc., may not share circumvention technology needed for support of the "fair access" right even with each other. If that reading of the law is correct, then the exceptions that Bliley alludes to are really only available to "institutions like schools and libraries, and the public" if those institutions, or members of the public at large, are capable of constructing circumvention devices themselves --- which sure looks to me like an "undue burden". rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 12:41:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25812 for dvd-discuss-outgoing; Tue, 21 Mar 2000 12:41:56 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA25809 for ; Tue, 21 Mar 2000 12:41:54 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA21617 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 12:55:19 -0600 Date: Tue, 21 Mar 2000 12:55:19 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright Message-ID: <20000321125519.A21595@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000321173917.16593.qmail@web505.mail.yahoo.com> <200003211836.NAA22130@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <200003211836.NAA22130@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Mar 21, 2000 at 01:36:17PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > If that reading of the law is correct, then the exceptions that Bliley > alludes to are really only available to "institutions like schools and > libraries, and the public" if those institutions, or members of the > public at large, are capable of constructing circumvention devices > themselves --- which sure looks to me like an "undue burden". > As someone who previously trumpeted various congressional quotes trying to make the argument that the DMCA was being misused, I'd have to agree and say that their statements don't completely jive with the law they passed. No matter how many times they stated that fair use, Sony v. Universal, etc. are untouched, 1201 still stomps all over those things. If the congressional statements are useful in court, great-- the more ammunition the better. But I think I was deceving myself when I believed that the language in 1201 was a mistake. I also think that the congressional quotes should be taken with a grain of salt unless the actual wording of the law supports what they said. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 13:14:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31744 for dvd-discuss-outgoing; Tue, 21 Mar 2000 13:14:00 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31667 for ; Tue, 21 Mar 2000 13:13:58 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA25149 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 11:24:07 -0800 Date: Tue, 21 Mar 2000 11:24:06 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Message-ID: <20000321112406.U23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000321151516.83641.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from sterno@bigbrother.net on Tue, Mar 21, 2000 at 09:23:54AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns writes: > I'm not going to go so far as to say the intention of the DMCA was to > protect DVD's because I think they had somewhat different purposes in > mind. What I will say though is that the whole 40-bit isn't real > encryption argument has big holes in it. Remember that the government had > restrictions on the key length of the encryption that was legal to > export. That's why they used 40 bit keys. I'm sure if they had their > druthers, they'd be using 4096 bit keys and a strong proven algorithm. This is probably not true, and has been discussed a lot. Copy protection (especially when implemented in hardware) was an exception to the export controls -- as far back as the State Department's administration of ITAR, if I remember correctly. Also, decryption or authentication software which could not be modified to provide confidentiality was typically exportable. "The key length of the encryption" is not specific enough. The regulations have always been very specific about the characteristics that would make something non-exportable; simply "interoperating with a >40-bit symmetric key cryptosystem" was not enough on its own to make something nonexportable, if it could not be used or modified to achieve confidentiality through encryption. Although some documents have suggested that the CSS developers feared that a stronger system would be unexportable, if they did believe this, they were probably wrong. I heard a presentation about copy protection which gives another idea about why they might have used a 40-bit cryptosystem. Strong cryptosystems often require more hardware to implement, which is more expensive and has higher power consumption. (This is true in particular if you want to do real-time streaming decryption on an embedded device, which is exactly what DVD players need to do. In that environment, you have perhaps chosen the slowest and smallest CPU which will do what you want; if you have to do real-time decryption by a more sophisticated algorithm, requiring more computation, you may need a faster CPU or more RAM, so that your device could be more expensive, heavier, larger, hotter, or have a shorter battery life.) As a result, player device vendors would be happier with a weaker cryptosystem which is cheaper to implement in hardware (or, in the limiting case, they would be happiest with _no_ encryption at all, if they are producing portable devices). This is probably not acceptable to the content providers (or at least to the more ambitious committees within their trade associations), so what are the solutions? - They could use a weak cryptosystem, which would be broken readily and make the content providers upset. - They could use a strong cryptosystem, which would be expensive to implement and make the hardware vendors upset. - They could use a weak cryptosystem (making the hardware producers happy) and get a law passed which said it was _illegal_ to break that cryptosystem (making the content providers happy). -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 13:24:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA00731 for dvd-discuss-outgoing; Tue, 21 Mar 2000 13:24:23 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA00728 for ; Tue, 21 Mar 2000 13:24:21 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA19921 for ; Tue, 21 Mar 2000 13:37:27 -0600 Date: Tue, 21 Mar 2000 13:37:27 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright In-Reply-To: <20000321125519.A21595@thud.reric.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 21 Mar 2000, Eric Seppanen wrote: > As someone who previously trumpeted various congressional quotes trying to > make the argument that the DMCA was being misused, I'd have to agree and > say that their statements don't completely jive with the law they passed. > No matter how many times they stated that fair use, Sony v. Universal, > etc. are untouched, 1201 still stomps all over those things. Well, 1201 stomps on them if you interpret it a certain way. I think this clearly illustrates that the way the MPAA is using this law is interpreting things differently than Congress. It seems that Congress actually had the foresight to see this potential problem, but it doesn't appear that they knew how to make it clear within the law. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 13:44:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05794 for dvd-discuss-outgoing; Tue, 21 Mar 2000 13:44:42 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA05791 for ; Tue, 21 Mar 2000 13:44:41 -0500 Received: (qmail 12327 invoked by uid 500); 21 Mar 2000 20:02:58 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 21 Mar 2000 20:02:58 -0000 Date: Tue, 21 Mar 2000 12:02:57 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu In-Reply-To: <200003211635.RAA14585@dwaal.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id NAA05792 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Can a judge ban a product from being imported or exported under DMCA? Will this reflect both Norway and US? I'm working on a DVD player for Linux; am hoping to sell it to make money. It will use DeCSS. Kent On Tue, 21 Mar 2000, tser wrote: > See also Wired.com http://www.wired.com/news/technology/0,1282,35028,00.html > > Developed in China by Visual Disc and Digital Video Corp. (VDDV) and sold in > the United States by Apex Digital Inc, the Apex player is attracting attention > for reasons besides its low price of US$169.95. > > Unlike other DVD players, the Apex can play DVD movies created anywhere in the > world. Regions are assigned specific numbers so, for example, DVDs created in > Region 1 –- the United States -– can only be played in that area. But by > accessing a hidden menu in the Apex player, users can turn off regional > encoding. > > The player also has the ability to remove the DVD Content Scrambling System > (CSS). Doing so enables users to copy DVDs, similar to the functionality of the > much-maligned DeCSS utility. > > The CSS removal option has piqued the interest of the MPAA. > > "We are currently looking at the player to determine whether any action is > warranted," said Emily Cutner, a spokeswoman for the MPAA. > > The DVD player is also the first in the United States to support the > controversial MP3 secure music format. Users can insert a CD-ROM full of MP3 > files and the player brings up a menu on the television to play back the songs. > Hidden features included in a DVD player released in January have the Motion > Picture Association of America contemplating legal action. > Thanks to Nerdout.com, both users and the MPAA are aware that the Apex AD-600A > player's DVD copyright protection scheme and regional encoding features can be > overridden. > > The Recording Industry Association of America (RIAA) -- which has sued MP3.com, > declaring the MP3 format a copyright violation -- was unaware of the Apex > player and its capabilities and declined to comment. > > Apex's maker said the ability to remove regional encoding and CSS protection > were included but were intended only for developers. End users were not > supposed to be able to access that menu or those features. > > "Twenty-four manufacturers use the same menu chip as in ours, so they all have > the same capability," said Colton Manley, a spokesman for Apex, in Ontario, > California. "Certainly our intention is not to sell anything that will cause > any problems." > > But users are reacting positively. > > "I have no complaints! It's been running like a charm. It really is worth the > purchase, you get a lot of bang for your buck," said one person on the > alt.video.dvd newsgroup. > > "So far I'm impressed with it. It produces a great picture, and combined with > the ability to turn off region locks and macrovision, it's a real winner!" said > another newsgroup posting. > > Still, Apex officials said the next version of the Apex DVD player will have > the hidden menu disabled. > > The company is also planning to release three new DVD players as well as a car > player with the same features as the AD-600A. The MD-100 will fit in a car > radio slot and feature DVD, CD, and MP3 playback plus standard AM and FM > playback. > > Apex expects its biggest potential market will be people who drive SUVs, where > manufacturers have been installing television sets in the back seat. The MD-100 > will be available next month for $499. The company is still working on getting > it into retail outlets. > > (copyed from wired.com) > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 14:24:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12211 for dvd-discuss-outgoing; Tue, 21 Mar 2000 14:24:51 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA12185 for ; Tue, 21 Mar 2000 14:24:48 -0500 Received: (qmail 12792 invoked by uid 60001); 21 Mar 2000 20:37:58 -0000 Message-ID: <20000321203758.12791.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Tue, 21 Mar 2000 12:37:58 PST Date: Tue, 21 Mar 2000 12:37:58 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: Technology To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Joshua Daub wrote: > > > >Can anyone say with a straight face that Congress was trying to > >promote the progress of science by passing this law? How would > >you explain this to a graduate student who wants to study > >cryptology but can't get a grant? > > I fail to see more than a miniscule relation between funding for > encryption research at the graduate school level, and a law that > protects CSS, even if CSS was the weakest encryption scheme of all > time. If the market wants better encryption, the market will get better > encryption. After the DMCA, you have to admit the market's NEED for better encryption is greatly diminished. > The DMCA merely probibits the market from obtaining better encryption > at the expense of a copyright owner's encryption scheme, except > under certain circumstances (those circumstances being the narrow > exception for good faith encryption research). Exactly. The law protects the inferior. Guess what happens over time - mediocrity and weakness become the rule. I prefer Darwin's approach in the marketplace. > If you are prepared to restrict the commerce clause, are you prepared > to find new authority for Civil Rights legislation? Congress often used > and continues to use the commerce clause as its authority for enacting > anti-discrimination laws. Anti-discrimination legislation regarding who can participate in an exchange of goods or services doesn't give me big problems. The commercial transactions involved are easy to find. However, I also believe that such laws need not rely on the commerce power, but rather from a natural right of people to have access to the offereings of business without discrimination based on immutable characteristics. Businesses, after all, are entirely a creation of government. I would found this on a 9th amendment claim, so that it is axiomatic. I would then apply it also to state law using the 14th amendment. Could Congress and the States remove all such laws making such commercial discrimination illegal? I would propose not. Could Congress and the States use the commerce power to force individuals to refrain from such discrimination in the giving of gifts, on the theory that gifts substantially affect commerce? I would propose not. > However, if you truly believe this, might I suggest you vote for > George Bush in November. Bush's nominees to the Supreme Court are > more likely to restrict commerce clause jurisprudence. This is probably true, but other evils no doubt come as part of the package. Not that I like Gore much, either. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 14:48:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14843 for dvd-discuss-outgoing; Tue, 21 Mar 2000 14:48:23 -0500 Received: from web504.mail.yahoo.com (web504.mail.yahoo.com [128.11.68.71]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA14840 for ; Tue, 21 Mar 2000 14:48:19 -0500 Received: (qmail 21393 invoked by uid 60001); 21 Mar 2000 21:01:44 -0000 Message-ID: <20000321210144.21392.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Tue, 21 Mar 2000 13:01:44 PST Date: Tue, 21 Mar 2000 13:01:44 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Paracopyright To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > However, while 1201(a) does establish several cases in which > libraries and other institutions have the right to circumvent > access controls, it's not clear (to my untrained eye, at least) how > they are supposed to obtain the technical tools required to exercise > that right, without somebody violating 1201(b) somewhere along the > line --- the 1201(a) circumvention ban has statutory exceptions > which are designed to support "fair access", but, as far as I can see > (and I hope someone will correct me if I'm wrong), > the 1201(b) trafficking ban does not. > In fact, 1201(d)(4) seems to me to reemphasize that nonprofit > libraries, etc., may not share circumvention technology needed for > support of the "fair access" right even with each other. I would read Bliley's comments and the Librarian of Congress part of the law and conclude that "fair access" exists. I'd also read the First Amendment and the 'public good' interpretation of the copyright holder's "quid pro quo" as in CNN v VMS. (see: http://eon.law.harvard.edu/archive/dvd-discuss/msg01634.html) After concluding it exists, I'd stop looking to the statute to define it and reason directly by reading the analogous caselaw on fair use. Indeed, fair use was not found at all in the copyright statute until 1976, at which time is was firmly settle law. Congress recognized that they "restated" the principle instead of changing it. I would read (d)(4) to concern the case where it would not otherwise be "fair access" if done by someone else. For example, a library could use the Streambox VCR, but could not redistribute it. > If that reading of the law is correct, then the exceptions that > Bliley alludes to are really only available to "institutions like schools > and libraries, and the public" if those institutions, or members of the > public at large, are capable of constructing circumvention devices > themselves --- which sure looks to me like an "undue burden". By what power does Congress stop the non-commercial sharing and cooperation of the public? It's one thing if these tools are being sold as in Streambox, but where they are not, I submit Congress has no authority to act. We leave all sorts of intellectual property matters to the states, why not this one? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 14:52:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15467 for dvd-discuss-outgoing; Tue, 21 Mar 2000 14:52:54 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA15464 for ; Tue, 21 Mar 2000 14:52:52 -0500 Received: (qmail 10343 invoked by uid 60001); 21 Mar 2000 21:05:48 -0000 Message-ID: <20000321210548.10342.qmail@web503.mail.yahoo.com> Received: from [131.44.121.4] by web503.mail.yahoo.com; Tue, 21 Mar 2000 13:05:48 PST Date: Tue, 21 Mar 2000 13:05:48 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Paracopyright To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > I also think that the congressional quotes should be taken with > a grain of salt unless the actual wording of the law supports > what they said. With regard to fair use, freedom of speech, and no prior restraint on speech, the law does contain actual wording that says these things. A judge could easily choose to interpret this expansively and site the Congression record to support a textually based opinion. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 14:59:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15977 for dvd-discuss-outgoing; Tue, 21 Mar 2000 14:59:02 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA15974 for ; Tue, 21 Mar 2000 14:59:00 -0500 Received: (qmail 19144 invoked by uid 502); 21 Mar 2000 21:14:12 -0000 Date: Tue, 21 Mar 2000 16:14:12 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Article on Law News Network Message-ID: <20000321161412.V16417@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry to interrupt discussions, but thought everyone would want to read this if they haven't already (it's up on Slashdot). It's an article on the Law News Network regarding the CT case. The interesting thing about this article pertains to the showing of damage resulting from the release of DeCSS. The claim is that DVD Audio has been pushed back by months due to the CSS break and the subsequent need to develop new encryption technologies. They don't mention that Pioneer said "screw it" and had announced shortly after that they were rolling out DVD Audio without CSS, to implement CSS later as a firmware upgrade, rather than waiting. Anyhow, read it yourself: http://www.lawnewsnetwork.com/stories/A19120-2000Mar20.html Rob Warren greslin@linuxpower.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:05:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16585 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:05:20 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA16568 for ; Tue, 21 Mar 2000 15:05:18 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA23984 for ; Tue, 21 Mar 2000 15:18:42 -0600 Date: Tue, 21 Mar 2000 15:18:42 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 21 Mar 2000, Kent Nguyen wrote: > Can a judge ban a product from being imported or exported under > DMCA? Will this reflect both Norway and US? > I'm working on a DVD player for Linux; am hoping to sell it to make > money. It will use DeCSS. I suspect not. The DMCA provides explicitly stated remedies for judges to use against those people they find in violation of it. Those sorts of decisions have to be made by Congress I believe. Of course apply the usual IANAL disclaimer to all of this :) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:06:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17552 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:06:35 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17516 for ; Tue, 21 Mar 2000 15:06:34 -0500 Received: (qmail 4792 invoked from network); 21 Mar 2000 21:16:29 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 21 Mar 2000 21:16:29 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id NAA05784; Tue, 21 Mar 2000 13:20:24 -0800 Date: Tue, 21 Mar 2000 13:20:24 -0800 Message-Id: <200003212120.NAA05784@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >I'll take the bait. The legal definition of "device" had better have >something to do with the real-world situation. Oh stop being such a hopeless materialist :) What makes a spoon a spoon? The silver it's made out of or the function? Is it no longer a spoon if it's made of plastic? Let's go even further. Is it the plastic that makes it disposable? Is there some physical (material as opposed to logical) law that prevents me from disposing of a spoon made of silver or is it a logical understanding that silver is more expensive in which case it has the logical property of value? Winmodems. The damned things do nothing but send signals out on the phone line. It depends completely upon the CPU which is completely useless without software. >The device is the hardware. Hardware means silicon doped with phosphorous, >boron, arsenic; aluminum or copper wiring, germanium-silicon junctions, >SiO_2, etc. This hardware is a general-pupose computer. The device is the software. Software means bytes doped with c,asm,forth; static or dynamically linked libraries; drivers, etc. This software is a general purpose operating system. >The instructions for how to operate the device are not themselves a device. That's not what we're talking about. There's no instruction to operate hardware in DeCSS in a specific way. The RAM is not the device being manipulated. I don't tell the RAM decrypt this DVD. I tell the RAM take this value. I tell the RAM give me that other value. I tell the program to decrypt. >The computer program is just that, a "program," just like you'd receive >at the door to a play --- a description of the events to follow. To a >first approximation, the actors in this case are electrons and holes >in semiconductors, and electrons in the metal wiring between junctions. >Op-codes, object files, and high-level languages are not actors, they >are instructions, pure and simple. Only instructions are instructions. What you just said is like saying a car is atoms not a device. Op-codes, object files, and high-level languages are actors. The CPU functions as the stage in which they act. Electrons are not the actors. Electrons don't move by themselves. A CPU is as dead without software as a stage is dead without actors. Even with the power on, a CPU is still dead without a BIOS (software) and Operating System (software). Just as a stage is still dead with the lights out and the audience waiting but with out actors. > >From a legal stand-point we are arguing in circles because the >patent on a process vs. copyright on expression "dichotomy" was >blown sky-high by the invention of the general-purpose computer. The >entire point of the programmable general-purpose computer is to >get as close as possible to eliminating the distinction between >describing a process and doing the process. I totally disagree. The entire point of of the general purpose computer is to save the engineer the headache of hacking against all kinds of inconvenient conservation laws, timing considerations, and other alchemic techniques. To that affect the software is just as big a partner in producing a result as the hardware. >This still leaves me objecting to calling a program a "device." Like I said just cause it's not in the palm of your hand doesn't mean it isn't a device. >> However an argument for object code being crucial to free speech (I don't >> see it as free speech itself) is that it is used in experiment when one >> studies the workings of a software device. Now you might say the source >> falls in that category. Yes it does, but one might argue that without it a >> you cannot observe software failures bugs or other properties interactively >> which is a significant mode of learning. > >This is connected to the argument the government has made in Bernstein. They >want to make a functional vs. speech distinction. This argument is at >least as dangerous as it has always been, and in my opinion is worse >now than before the invention of the programmable computer. > >One of the classical speech vs. action arguments is "shouting fire" in >a crowded theater. People could be injured two ways in this situation. > >1. People could be burned. Takes a while. >2. People could be trampled because some of the people in the theater >are afraid of being burned. It is especially this case that counts. Especially when there is no fire. >This example has always driven my engineering sensibilities crazy. >Any occupied building can burn, the question is how fast. The problem in the >case of a theater is that the building can turn into a raging inferno >much faster than people can exit the building. To take an engineering >failure, and then limit speech based on that failure might be acceptable >as a short-term remedy until the engineers can get their act together, but >as a permanent prohibition, it makes no sense. The "action" side of this >speech only results because of a faulty building design, not because >of the speech per se. It's also because of faulty human design too. People react haphazardly during a life threatening situation. >Because programmable computers are intended to blur the distinction >between a process and description of a process, any limits on speech as >being "too functional" will have very bad long-term repercussions. Is that >postscript document functional (it is a set of command for drawing on a >screen or piece of paper), or is it expressive (when the instructions for >drawing on the page are finished, one has expressive material in a >natural language)? Can a postscript document in and of itself without interpretation jump out of your machine and kill you? No. Seriously, I agree with you. It is dangerous. But pretending programs are not devices is not a solution. The threat to free speech will not go away until we show that the possibility that something would cause damage to a business is not more dangerous than loss of free speech. >Paul Fenimore Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:17:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20059 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:17:32 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20043 for ; Tue, 21 Mar 2000 15:17:30 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id WAA03139 for ; Tue, 21 Mar 2000 22:30:54 +0100 (CET) From: "tser" To: Subject: RE: [dvd-discuss] Re: Date: Tue, 21 Mar 2000 22:16:30 +0100 Message-ID: <000201bf937a$bd4b38e0$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <20000321160731.9354.qmail@web507.mail.yahoo.com> X-MIMEOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [Pirates and Decss] >Is there any actual evidence of these folks using DeCSS? Yes, i have used it, just to see how it works ;o) It was nice to watch the movie the day after i rented it, but after a week i erased it, 4 gigs was just to much on my HD. >Weren't they around before DeCSS? Yes,previsously i used My re-routed digitizer. >Are you suggesting that the siblings of DeCSS will not be used for >simple viewing of purchased DVD's? No, In the End, The Content is ment to be viewed [Does the DMCA's ban on distributing circumvention tools make it any....] [... - it just bothers more honest citizens ...] Most citizens don't have the medium to copy DVD's On. How many people of you have a videotape of a videofilm you didn't buy ? Countless. But Yes indeed, Decss isn't a pirating tool on it's own. A ColorCopier Machine, in your office isn't neither, but you may not copy Cash with it , allthough that might be the first thing you try out on it :o) - tser " I'm just a fool, hamering around on a keyboard" From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:23:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20754 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:23:59 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA20751 for ; Tue, 21 Mar 2000 15:23:57 -0500 Received: (qmail 19277 invoked by uid 502); 21 Mar 2000 21:39:11 -0000 Date: Tue, 21 Mar 2000 16:39:11 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321163911.W16417@linuxpower.org> References: <200003212120.NAA05784@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <200003212120.NAA05784@ns1.filetron.com>; from Rares Marian on Tue, Mar 21, 2000 at 01:20:24PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 01:20:24PM -0800, Rares Marian wrote: > > What makes a spoon a spoon? The silver it's made out of or the function? > Is it no longer a spoon if it's made of plastic? Let's go even further. > Is it the plastic that makes it disposable? Is there some physical > (material as opposed to logical) law that prevents me from disposing of a > spoon made of silver or is it a logical understanding that silver is more > expensive in which case it has the logical property of value? "Do not try to bend the spoon; that's impossible. Instead only try to realize the truth." "What truth?" "There is no spoon." "There is no spoon?" Deeply sorry. > The device is the software. Software means bytes doped with > c,asm,forth; static or dynamically linked libraries; drivers, etc. This > software is a general purpose operating system. I suspect "device" is legally defined as vaguely as "program" is. Does anyone have an official legal definition for "device"? I'd rather not go down a "turing complete" road again. Rob Warren greslin@linuxpower.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:26:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21121 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:26:35 -0500 Received: from hotmail.com (law2-f160.hotmail.com [216.32.181.160]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA21118 for ; Tue, 21 Mar 2000 15:26:34 -0500 Received: (qmail 53848 invoked by uid 0); 21 Mar 2000 21:39:29 -0000 Message-ID: <20000321213929.53847.qmail@hotmail.com> Received: from 209.92.31.35 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 13:39:29 PST X-Originating-IP: [209.92.31.35] From: "Joshua Daub" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Reality Check Date: Tue, 21 Mar 2000 16:39:29 EST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Without rhetorical exposition, could I have a show of hands (short comments) regarding the list-members' predictions of the outcome of the NY DVD case? As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:32:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22146 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:32:02 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA22143 for ; Tue, 21 Mar 2000 15:32:00 -0500 Received: (qmail 14036 invoked by uid 500); 21 Mar 2000 21:50:17 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 21 Mar 2000 21:50:17 -0000 Date: Tue, 21 Mar 2000 13:50:17 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check In-Reply-To: <20000321213929.53847.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Judge Kaplan will favor the plantiff (MPAA). We will appeal to a higher court, and we win there. Kent On Tue, 21 Mar 2000, Joshua Daub wrote: > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. > > > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:32:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22368 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:32:34 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA22365 for ; Tue, 21 Mar 2000 15:32:33 -0500 Received: (qmail 19323 invoked by uid 502); 21 Mar 2000 21:47:49 -0000 Date: Tue, 21 Mar 2000 16:47:49 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check Message-ID: <20000321164749.Y16417@linuxpower.org> References: <20000321213929.53847.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000321213929.53847.qmail@hotmail.com>; from Joshua Daub on Tue, Mar 21, 2000 at 04:39:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 04:39:29PM -0500, Joshua Daub wrote: > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. Far, far too early to make that call. Also, keep in mind that the issues here are far larger than a few hacker websites and DeCSS. Winning the battle while losing the war isn't much of a victory at all. The NY DVD case is just the tip of the iceberg. Rob Warren greslin@linuxpower.org www.iag.net/~aleris From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:33:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22457 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:33:21 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22453 for ; Tue, 21 Mar 2000 15:33:19 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id NAA25421 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 13:43:31 -0800 Date: Tue, 21 Mar 2000 13:43:30 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: DVD Audio delay, "spin", and public perceptions of "unfair competition"? (was: Re: [dvd-discuss] Article on Law News Network) Message-ID: <20000321134330.B23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000321161412.V16417@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000321161412.V16417@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 21, 2000 at 04:14:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > Sorry to interrupt discussions, but thought everyone would want > to read this if they haven't already (it's up on Slashdot). It's > an article on the Law News Network regarding the CT case. > > The interesting thing about this article pertains to the showing > of damage resulting from the release of DeCSS. The claim is that > DVD Audio has been pushed back by months due to the CSS break > and the subsequent need to develop new encryption technologies. This argument is very peculiar. DVD Audio _was_ delayed for that reason, but why, exactly, is this a legal problem? The decision to delay DVD Audio was a business decision on the part of the DVD Forum, or some of the individual companies which are a part of it. They made that decision on the basis of the information available to them, which included the fact that CSS was a horribly inadequate encryption algorithm and had been publicized and broken. If this publicity or the availability of CSS-breaking tools is not itself illegal (which we're already arguing about), why is it suddenly illegal as a result of the fact that it induces the DVD Forum to make this particular business decision? I'm thinking of the "unfair competition" claim in threatened censorware lawsuits. I don't remember whether this claim was made in the Cyber Patrol lawsuit, but censorware vendors routinely threatened other people with it. The idea seems to be that, if you dislike product X on aesthetic or political or philosophical or moral grounds, and you embark on a campaign to ruin X in the marketplace, or to make X obsolete, or demonstrate that X is useless, then you are engaging in "unfair competition", in the eyes of some lawyers. In the most extreme view, this seems to be the case regardless of your motivations, and regardless of the means you use to produce this result. The fact that you wanted and tried to make a particular product fail means that you engaged in unfair competition, again according to my interpretation of some lawyers' claims. In the "DVD audio delay" argument, it's even _worse_! People who publish DeCSS did not intend to make DVD Audio fail, or to make it be delayed. They certainly didn't try to do either of those things; but they had that effect, indirectly, because the industry (by and large) became afraid and withdrew that product. Providing a means for circumvention is in some sense a form of criticism. If a car were unsafe, you could say "if you do such-and-such and such-and-such, this car will explode". If tool were particularly weak, you could say "if you do such-and-such and such-and-such, the tool will break". Now, if you disagree with some aspect of the product's nature or application, this "criticism" is not necessarily made in what the product vendor might consider a "constructive spirit". Thus, a vendor might say that _constructive_ criticism (i.e. "criticism we don't want to sue you over") should be made in confidence, and furthermore with suggestions or relevant information about how the product can be improved. This is unlikely to happen when the person making the criticism is not eager to work on friendly terms with the vendor -- e.g. censorware critics who wish censorware would disappear or break altogether, not "be made more secure". Hostile product criticism, when it is accurate, is still considered protected speech (and many people feel strongly that this protection is very important). I'm wondering about the difference between various varieties of criticism, and what the different legal standards applied in practice would be. If I'm a consumer advocate who publishes a means for getting cars to blow up, or something, then presumably the car vendors may be irritated, but the general public may be sympathetic. If I'm a programmer who publishes a means for getting CSS player keys, or censorware programs' administrative passwords, the general public will probably _not_ be sympathetic. I think the different in the public's reaction may be based on the perceived motives of the person publishing the information. (There is also a difference in that "cars blowing up" is a problem that can be trigged at random by nature, but "protection mechanisms being circumvented" is a purported problem which can only be triggered on purpose by a human being trying to circumvent the systems. In that regard, publishing reports of problems which are "likely to occur in normal use" may be well-regarded by the public and by courts looking at trade-secret or unfair-competition claims, but reports of problems which are "exploitable by an adversary or intruder" may be perceived as merely "the unnecessary creation of the electronic equivalent of burglar's tools".) In the New York case, as well as in the DMCA, there is some discussion of what it means to be a "legitimate security researcher". I'm _very_ concerned that being a "legitimate security researcher" is being interpreted to mean either (1) having some sort of formal academic or professional credentials, or (2) _agreeing with_ the goals of the people deploying the systems you are investigating. The suggestion I see taking shape here is that, if you agree with the purpose for which someone is using a security system, you may investigate it all you like (because you are certain to work to fix or provide useful information for fixing the system, if you do find problems), but if you're on the "other side", and don't agree, you are forbidden from investigating (because the information you discover would likely be used to undermine the system, or for undermining public confidence in it). Is it really possible that this is how it works? What will determine whether a {vendetta, publicity campaign, educational campaign, research paper, propaganda piece, exploit, demonstration, competitive analysis, white paper} constitutes "unfair competition"? What will determine whether it constitutes "legitimate security research"? I'm wondering both as a matter of law, as a matter of judicial opinion, and as a matter of public opinion. ObDMCA: I'm not addressing anything about whether publishing particular things is forbidden by the DMCA here; I'm only thinking of the "unfair competition" and "harm" supposedly produced by publishing CSS information, as evidenced by the delay of DVD Audio. Or that produced by publishing the Cyber Patrol paper, or future information along the lines of either. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:42:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24078 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:42:01 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24075 for ; Tue, 21 Mar 2000 15:42:00 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id WAA14544 for ; Tue, 21 Mar 2000 22:55:20 +0100 (CET) From: "tser" To: Subject: [dvd-discuss] RE: Free speech in software Date: Tue, 21 Mar 2000 22:40:58 +0100 Message-ID: <000301bf937e$25bdc7a0$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <200003212120.NAA05784@ns1.filetron.com> X-MIMEOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'f been reading with my little mind several words here in this groups, and was been bubbling about that free speech. I do understand now that i may say anything i want to. As long as i follow the rest of the constitution. But do i have also the right to "do" what i say ? so that my words gets a result ? If "source code" is free speech. then the compiled version of the source code is the "doing" of the source code, the result. I agree that source code is speech. But i disagree (I, human, tser) that the product decss is speech, I think it's the "compiled result" of the source., The action, laid inside those programing words. Because, if every code, is speech, and i may say whatever i want to say, nobody can stop me from writing anything i want, including, the most stupid things where human beings ever came upon. ------- The capability which decss introduced, to copy DVD's, does not more damage to business dan videotapes did before. It rather promotes the DVD. Any medium, which can not be copied, has no sex on it And does not fit in your pocket, Will Fail. That's my law :-) VCD Failed in the past. VCD became a succes, when there was DVD, and people Ripped DVD to VCD, among all those In-the-bios-taken-with-a-handycam movies. So people started to play VCD"s in there DVD player. others saw that, and started to uy DVD players. So Decss and all the media attention it had, did something good to the bussiness. From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:43:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24372 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:43:59 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24356 for ; Tue, 21 Mar 2000 15:43:58 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA26007 for ; Tue, 21 Mar 2000 15:57:22 -0600 Date: Tue, 21 Mar 2000 15:57:22 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check In-Reply-To: <20000321213929.53847.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. Judge rules for the plaintiff. Defendant wins on appeal. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:52:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26346 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:52:56 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA26343 for ; Tue, 21 Mar 2000 15:52:54 -0500 Received: (qmail 21719 invoked by uid 502); 21 Mar 2000 22:08:10 -0000 Date: Tue, 21 Mar 2000 17:08:10 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RE: Free speech in software Message-ID: <20000321170810.Z16417@linuxpower.org> References: <200003212120.NAA05784@ns1.filetron.com> <000301bf937e$25bdc7a0$e58e97c2@tser> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000301bf937e$25bdc7a0$e58e97c2@tser>; from tser on Tue, Mar 21, 2000 at 10:40:58PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 10:40:58PM +0100, tser wrote: > > I do understand now that i may say anything i want to. As long as i follow > the rest of the constitution. No, you may not. The Constitution defines what the government is, what it can and can't do. Whether you personally follow the Constitution really doesn't matter, since nothing you do personally can be called unconstitutional unless you are acting in an official capacity as the U.S. Government. The Constitution doesn't necessarily protect your "free speech" from retaliation from private parties, only from the government. > But do i have also the right to "do" what i say ? so that my words gets a > result ? No, you don't. Rob Warren greslin@linuxpower.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 15:58:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27121 for dvd-discuss-outgoing; Tue, 21 Mar 2000 15:58:41 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA27117 for ; Tue, 21 Mar 2000 15:58:37 -0500 Received: (qmail 21938 invoked by uid 502); 21 Mar 2000 22:13:52 -0000 Date: Tue, 21 Mar 2000 17:13:52 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check Message-ID: <20000321171352.A16417@linuxpower.org> References: <20000321213929.53847.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000321213929.53847.qmail@hotmail.com>; from Joshua Daub on Tue, Mar 21, 2000 at 04:39:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 04:39:29PM -0500, Joshua Daub wrote: > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. Forgive me please if we end up with two copies of this.. I sent my reply an hour ago and it hasn't shown up yet. I say it's way, way to early to call. There's a good chance that the Kaplan trial won't start until 2001, and there are an awful lot of people tearing apart caselaw to build a defense. There are far too many factors to make this question anything more than a brief diversion. It's a lot like trying to predict the 2004 U.S. Presidential election today. Rob Warren greslin@linuxpower.org From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 16:09:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29439 for dvd-discuss-outgoing; Tue, 21 Mar 2000 16:09:14 -0500 Received: from tomts2-srv.bellnexxia.net (tomts2.bellnexxia.net [209.226.175.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA29416 for ; Tue, 21 Mar 2000 16:09:13 -0500 Received: from sympatico.ca ([209.226.230.182]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000321222204.XMEY911.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Tue, 21 Mar 2000 17:22:04 -0500 Message-ID: <38D7F813.E91FA1CF@sympatico.ca> Date: Tue, 21 Mar 2000 17:30:43 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check References: <20000321213929.53847.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Daub wrote: > > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. Well, first we see how the identical issues of fact and law play out in the Conneticut case. That will have an effect on the NY case. I think that IF (and that's a big if) it is argued competently, with a full understanding of the law and issues, Defendant will win. If Kaplan is made to understand DeCSS in a way that no attempt was made to make him understand in the pretrial motion, he'll see that DeCSS (with all its historical warts) has no real economic consequence to the Plaintiffs. I may be proven wrong, but prior to this case, Kaplan had a reputation of being intelligent, fair, and generally pro-"little guy". I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 16:15:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA31099 for dvd-discuss-outgoing; Tue, 21 Mar 2000 16:15:19 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA31096 for ; Tue, 21 Mar 2000 16:15:18 -0500 Received: from 25915 (205.9.252.64.snet.net [64.252.9.205]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id RAA00158 for ; Tue, 21 Mar 2000 17:28:43 -0500 (EST) Message-ID: <00a801bf9384$d7f3aba0$d559fea9@25915> From: "Ernest Miller" To: References: <20000321161412.V16417@linuxpower.org> <20000321134330.B23385@cty-alum.org> Subject: Re: DVD Audio delay, "spin", and public perceptions of "unfair competition"? (was: Re: [dvd-discuss] Article on Law News Network) Date: Tue, 21 Mar 2000 17:28:38 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is misinformation by the MPAA. There is no way that they can claim the harm to DVD Audio from DeCSS (if any), permits them to walk into court and claim the protection of the DMCA. Ernie Miller ----- Original Message ----- From: Seth David Schoen To: Sent: Tuesday, March 21, 2000 4:43 PM Subject: DVD Audio delay, "spin", and public perceptions of "unfair competition"? (was: Re: [dvd-discuss] Article on Law News Network) > greslin@linuxpower.org writes: > > > Sorry to interrupt discussions, but thought everyone would want > > to read this if they haven't already (it's up on Slashdot). It's > > an article on the Law News Network regarding the CT case. > > > > The interesting thing about this article pertains to the showing > > of damage resulting from the release of DeCSS. The claim is that > > DVD Audio has been pushed back by months due to the CSS break > > and the subsequent need to develop new encryption technologies. > > This argument is very peculiar. > > DVD Audio _was_ delayed for that reason, but why, exactly, is this a > legal problem? > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 16:19:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32138 for dvd-discuss-outgoing; Tue, 21 Mar 2000 16:19:48 -0500 Received: from hotmail.com (f220.law3.hotmail.com [209.185.241.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA32135 for ; Tue, 21 Mar 2000 16:19:47 -0500 Received: (qmail 57717 invoked by uid 0); 21 Mar 2000 22:32:43 -0000 Message-ID: <20000321223243.57716.qmail@hotmail.com> Received: from 206.245.243.145 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 14:32:43 PST X-Originating-IP: [206.245.243.145] From: "Fire Drake" To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Date: Tue, 21 Mar 2000 15:32:43 MST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >c) DeCSS not a "technology, product, service, device, component, or part >thereof" >Incidentally, I think this is a fairly strong argument; I laugh whenever I >read a plaintiff's attorney calling DeCSS a "circumvention device". Um man, it hurts me to say this have been ruled on already... I was looking for some source code and bumped into this page... http://personal.sip.fi/~lm/c2txt2c/ Which had this to say... "C source code as functional item There is problem with free speech in the USA: Judge Gwin of the Federal District Court of the Northern District of Ohio has recently held that software is not protected by the First Amendment because it is a ``functional device'' like a telephone circuit. For more read Editorial in Slahdot: Open Software & Constitutionally Protected Speech http://slashdot.org/articles/980811/2153219.shtml --------------------- Demonstration that C source is speech I made a program that translates C-source for Blowfish cryptographic algorithm to English. It consist of two programs: c2txt translates blowfish.c.gz into English. txt2c translates resulting English text back into c. After removing and adding few line breaks command diff -uBw output2.c input.c will not produce output. Anyone in the USA want to exercise their 1. amendment right and put English text in blowfish.txt into their web site? Mail me and I will link to it." So I followed to the slashdot article... http://slashdot.org/articles/980811/2153219.shtml Which returned a file not found error (404). So I went to slashdot.org and searched for free speeching pulling this up... Is Code Protected by Free Speech? http://slashdot.org/articles/99/04/10/1729255.shtml ... from April of last year. but I couldn't find nothing on the ruling... So I followed a link from there... Is code free speech? http://www.arstechnica.com/wankerdesk/2q99/freespeech-1.html So I searched ARS pulling up some stuff on DSS that lead me to the NYtimes... http://www.nytimes.com/auth/login?Tag=/&URI=/library/tech/99/12/cyber/cyberlaw/10law.html ...This is the worst thing I've ever heard, no wait, it isn't, but it's bad. How can anyone be accountable for links? ...So from what the first page said there's all ready been a decision made about source code as free speech, and it's not, only I can't see any article on it. I don't like the sound of that at all, dang, links can be barred, source code isn't free speech... ...Way I see it, this is as bad as saying the pigs, I mean cops, can stop people from telling you where the sell hot items. (I equate links as telling you where to go and giving you directions.) And ruling that instruction on making drugs aren't legal. No are the ingredients (I equate source code as instructions and ingredients sort of a ready to go kit.)... ...If any one can find the ruling please post it... ------------------------------------- ZZZ ZZZ ZZ ZZZ ZZ ZZ Z K K ZZZ Z Z Z Z Z Z Z Z Z Z Z K K Z ZZ Z ZZ ZZZ Z Z ZZ ZZZ KK ZZZ Z Z Z Z Z Z Z Z Z Z Z K K Z Z ZZZ Z Z ZZZ ZZ Z Z Z Z K K ZZZ ------------------------------------- ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 17:01:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05279 for dvd-discuss-outgoing; Tue, 21 Mar 2000 17:01:04 -0500 Received: from maynard.mail.mindspring.net (maynard.mail.mindspring.net [207.69.200.243]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA05276 for ; Tue, 21 Mar 2000 17:01:03 -0500 Received: from mindspring.com (user-2ivf2bh.dialup.mindspring.com [165.247.137.113]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with ESMTP id SAA12428; Tue, 21 Mar 2000 18:14:28 -0500 (EST) Message-ID: <38D80166.EA76EEF2@mindspring.com> Date: Tue, 21 Mar 2000 18:10:30 -0500 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu CC: JEDIDIAH Subject: Re: [dvd-discuss] Re: your mail References: <200003210912.BAA00561@penguin.lvcm.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu JEDIDIAH wrote: > > > > i think it's something good that php scripts crash, cause this one is someway > > milder then my previous message :o) > > > > We'r not here to flame war, but to protect the right to Watch DVD's, anywhere > > we want. Face it, in fact, we'r trying to support a DVD copy Tool, > > widly used by users all over the internet to Rip and Copy DVd's to VCD's. > > > > Used by Owners of Large Backup Medium Streamers, to Copy DVD's, they rent from > > the videorent store. > > > > Used inside University's, to transfer DVD's from one place to another. Used to > > share DVD's, to play them on gigacampuslan. > > > > Face reality. > > To anyone with any piracy experience, this is simply absurd. Tools > have long existed, and been available for the relatively casual > pirate, to completely circumvent copy protection methods altogether > by simply accessing media at the bit level. While it's true that the > writing technology does not yet commonly exist to make dvd-console > ready copies of such 'backups', software based dvd players and > operating systems can be spoofed into believing that a file or set of > files is actually a cdrom or dvdrom. Such spoofing tools have been > available in the PC pirate community since as long as CDROM games have > been common. > > CSS has never been the barrier that it was advertised to be. I think > that the current litigation is as much an attempt to cover this up as > anything else. > As far as I understand it, copying a DVD is (or can be argued to be) legal under previous copyright law for private archival purposes. Making mass quantities of copies for sale is illegal, but this is addressed in Title 17 section 106. The posters of DeCSS are being sued under the DMCA (section 1201) because DeCSS merely accesses (colloquial term) the mpeg data directly by decrypting the .vob files. The fact that it could be used to make copies using built in OS commands like copy is a side issue and in fact I argue that DMCA does not disallow bit-by-bit copying at all since no decryption (circumvention -- DMCA definition) need take place. You have fallen into the same trap that I did in using the term circumvention in the braodest sense as opposed to the narrower definition that the DMCA makes. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 17:01:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05400 for dvd-discuss-outgoing; Tue, 21 Mar 2000 17:01:29 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA05397 for ; Tue, 21 Mar 2000 17:01:28 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id PAA25546 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 15:11:40 -0800 Date: Tue, 21 Mar 2000 15:11:39 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321151139.C23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000321223243.57716.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000321223243.57716.qmail@hotmail.com>; from fire___drake@hotmail.com on Tue, Mar 21, 2000 at 03:32:43PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fire Drake writes: > >c) DeCSS not a "technology, product, service, device, component, or part > >thereof" > >Incidentally, I think this is a fairly strong argument; I laugh whenever I > >read a plaintiff's attorney calling DeCSS a "circumvention device". > > Um man, it hurts me to say this have been ruled on already... > I was looking for some source code and bumped into this page... > http://personal.sip.fi/~lm/c2txt2c/ > Which had this to say... > "C source code as functional item > There is problem with free speech in the USA: > Judge Gwin of the Federal District Court of the Northern District of Ohio > has recently held that software is not protected by the First Amendment > because it is a ``functional device'' like a telephone circuit. _Junger_. It's a divergent precedent from _Bernstein_. Although the news is depressing, it's old. I agree that there is a problem, etc. But that ruling is not a binding precedent outside of the Northern District of Ohio, so everybody should come move to San Francisco... > ...So from what the first page said there's all ready been a decision made > about source code as free speech, and it's not, only I can't see any article > on it. I don't like the sound of that at all, dang, links can be barred, > source code isn't free speech... > > ...If any one can find the ruling please post it... http://samsara.law.cwru.edu/comp_law/jvd/pdj11.html See also http://samsara.law.cwru.edu/ If you want to read something more encouraging, see http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/ Remember that Federal courts don't always agree with each other, and, in disagreeing with one another, they don't always overrule each other, either. Does anyone here know anything about the SoftSpeech forum which Professor Junger mentions? -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 17:34:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09143 for dvd-discuss-outgoing; Tue, 21 Mar 2000 17:34:32 -0500 Received: from dial166.roadrunner.com (dial166.cybermesa.com [209.12.75.166]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA09140 for ; Tue, 21 Mar 2000 17:34:30 -0500 Received: (from paul@localhost) by dial166.roadrunner.com (8.8.7/8.8.7) id QAA02395 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 16:51:25 -0700 Date: Tue, 21 Mar 2000 16:51:25 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check Message-ID: <20000321165124.A2009@localhost> References: <20000321213929.53847.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000321213929.53847.qmail@hotmail.com>; from jadaub@hotmail.com on Tue, Mar 21, 2000 at 04:39:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Defendants win: 1. (a)(2) does not apply to devices, products or technologies that un-CSS DVDs. 2. DeCSS has signficant commerical use other than circumvention. Paul Fenimore On Tue, Mar 21, 2000 at 04:39:29PM -0500, Joshua Daub wrote: > Without rhetorical exposition, could I have a show of hands (short comments) > regarding the list-members' predictions of the outcome of the NY DVD case? > As in Plaintiff's Win or Defendant's Win and the dispositive legal issue. > > > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 17:38:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09526 for dvd-discuss-outgoing; Tue, 21 Mar 2000 17:38:08 -0500 Received: from dial166.roadrunner.com (dial166.cybermesa.com [209.12.75.166]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA09523 for ; Tue, 21 Mar 2000 17:38:06 -0500 Received: (from paul@localhost) by dial166.roadrunner.com (8.8.7/8.8.7) id QAA02405 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 16:55:00 -0700 Date: Tue, 21 Mar 2000 16:54:59 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321165459.B2009@localhost> References: <200003212120.NAA05784@ns1.filetron.com> <20000321163911.W16417@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000321163911.W16417@linuxpower.org>; from greslin@linuxpower.org on Tue, Mar 21, 2000 at 04:39:11PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 04:39:11PM -0500, greslin@linuxpower.org wrote: [ ... ] > I suspect "device" is legally defined as vaguely as "program" is. Does > anyone have an official legal definition for "device"? > > I'd rather not go down a "turing complete" road again. § 1201(a)(2): o (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - DeCSS is probably "technology" and a "product." The "device" discussion seems pointless from a legal stand-point. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 18:21:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13630 for dvd-discuss-outgoing; Tue, 21 Mar 2000 18:21:08 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA13627 for ; Tue, 21 Mar 2000 18:21:07 -0500 Received: from 208-58-196-247.s501.tnt10.lnhva.md.dialup.rcn.com ([208.58.196.247]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12XZ6a-0005GW-00 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 19:34:36 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <00a801bf9384$d7f3aba0$d559fea9@25915> References: <20000321161412.V16417@linuxpower.org> <20000321134330.B23385@cty-alum.org> <00a801bf9384$d7f3aba0$d559fea9@25915> Date: Tue, 21 Mar 2000 19:34:14 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: [dvd-discuss] Re: DVD Audio delay, "spin", and public perceptions of "unfair competition"? (was: Re: [dvd-discuss] Article on Law News Network) Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed. The defendants only showed that the encryption scheme was flawed. Suppose the DVDCCA used industry standard measures of effective protection. Suppose that the industry standard measure was x bits when DVD-Video was introduced. Some years later, when the DVD-audio standard was introduced, the industry would have become (x+y) bits, with y positive. This situation could well be "blamed" on advancing computing power, but the it would not be reasonable to hold the computing industry legally and financially responsible for this. >This is misinformation by the MPAA. There is no way that they can >claim the harm to DVD Audio from DeCSS (if any), permits them to walk >into court and claim the protection of the DMCA. > >Ernie Miller > >----- Original Message ----- >From: Seth David Schoen >To: >Sent: Tuesday, March 21, 2000 4:43 PM >Subject: DVD Audio delay, "spin", and public perceptions of "unfair >competition"? (was: Re: [dvd-discuss] Article on Law News Network) > > > > greslin@linuxpower.org writes: > > > > > Sorry to interrupt discussions, but thought everyone would want > > > to read this if they haven't already (it's up on Slashdot). It's > > > an article on the Law News Network regarding the CT case. > > > > > > The interesting thing about this article pertains to the showing > > > of damage resulting from the release of DeCSS. The claim is that > > > DVD Audio has been pushed back by months due to the CSS break > > > and the subsequent need to develop new encryption technologies. > > > > This argument is very peculiar. > > > > DVD Audio _was_ delayed for that reason, but why, exactly, is this a > > legal problem? > > From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 18:30:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15277 for dvd-discuss-outgoing; Tue, 21 Mar 2000 18:30:26 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15274 for ; Tue, 21 Mar 2000 18:30:25 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id TAA26346 for ; Tue, 21 Mar 2000 19:43:51 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA23838; Tue, 21 Mar 2000 19:43:50 -0500 (EST) Date: Tue, 21 Mar 2000 19:43:50 -0500 (EST) Message-Id: <200003220043.TAA23838@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright In-Reply-To: <20000321210144.21392.qmail@web504.mail.yahoo.com> References: <20000321210144.21392.qmail@web504.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I would read (d)(4) to concern the case where it would not otherwise be > "fair access" if done by someone else. For example, a library could use > the Streambox VCR, but could not redistribute it. That's clearly the intent of 1201(d) as a whole. But (bearing 1201(b) in mind) how do they *get* the Streambox VCR in the first place? If "trafficking" in Streamboxes is banned, it looks to me like they have to write their own Streambox (or the equivalent) in order to exercise any "fair access" rights, and that doesn't strike me as a reasonable requirement. That's my problem with 1201(b) --- it looks to me like, if taken at face value, it renders the "fair access" provisions of 1201(a)(1) a dead letter, and I'm not sure how else we're supposed to take it. > By what power does Congress stop the non-commercial sharing and > cooperation of the public? It's one thing if these tools are being sold > as in Streambox, but where they are not, I submit Congress has no > authority to act. We leave all sorts of intellectual property matters > to the states, why not this one? Well, by whatever power lets them say "No person shall" in 1201(b) without specifying that the conduct they're banning requires a profit motive. FWIW, that non-commercial sharing looks as much to me like interstate commerce as, say, growing wheat in your own backyard for private consumption. (For that matter, "non-commercial sharing and cooperation" characterizes a lot of open-source development, and there's not much controversy that if an open-source project infringes a patent, they're liable...). But WRT copyright specifically, it does look to me like an overreach, precisely because of the lack of any provision for what you're calling "fair access". I've argued for this before as the basis for a facial challenge to 1201(b) (and (a)(2)), but I didn't have many takers... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 18:35:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16079 for dvd-discuss-outgoing; Tue, 21 Mar 2000 18:35:46 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16076 for ; Tue, 21 Mar 2000 18:35:45 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id TAA26709 for ; Tue, 21 Mar 2000 19:49:12 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA23844; Tue, 21 Mar 2000 19:49:11 -0500 (EST) Date: Tue, 21 Mar 2000 19:49:11 -0500 (EST) Message-Id: <200003220049.TAA23844@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu In-Reply-To: References: <200003211635.RAA14585@dwaal.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kent Nguyen writes: > Can a judge ban a product from being imported or exported under > DMCA? Will this reflect both Norway and US? I am not a lawyer, and I can't give legal advice, but here's one layman's reading of the statute: Import is specifically listed as one of the banned forms of trafficking in 1201(b). Doing it for profit may make it a criminal, as opposed to merely civil, offense (17 USC 1204). Once again, I'm not a lawyer, and you should not take this as legal advice. But if you're seriously considering importing a DVD player, I would strongly suggest that you *find* a good lawyer, and take his advice, before going forward. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 18:52:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17457 for dvd-discuss-outgoing; Tue, 21 Mar 2000 18:52:02 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA17410 for ; Tue, 21 Mar 2000 18:52:01 -0500 Received: (qmail 27542 invoked by uid 60001); 22 Mar 2000 01:05:26 -0000 Message-ID: <20000322010526.27541.qmail@web502.mail.yahoo.com> Received: from [24.28.154.65] by web502.mail.yahoo.com; Tue, 21 Mar 2000 17:05:26 PST Date: Tue, 21 Mar 2000 17:05:26 -0800 (PST) From: Bryan Taylor Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > DeCSS is probably "technology" and a "product." The "device" > discussion seems pointless from a legal stand-point. It's probably "technology", but it seems odd to call it a "product", since it's not for sale. But, I agree "technology" is enough to make the debate pointless. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:02:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17959 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:02:28 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17956 for ; Tue, 21 Mar 2000 19:02:27 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA25786 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 17:12:39 -0800 Date: Tue, 21 Mar 2000 17:12:38 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321171238.N23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000322010526.27541.qmail@web502.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000322010526.27541.qmail@web502.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Mar 21, 2000 at 05:05:26PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Paul Fenimore wrote: > > > DeCSS is probably "technology" and a "product." The "device" > > discussion seems pointless from a legal stand-point. > > It's probably "technology", but it seems odd to call it a "product", > since it's not for sale. But, I agree "technology" is enough to make > the debate pointless. It's at least marginally interesting that the MPAA persists in calling DeCSS a "device" in demand letters. I do wish they would stop that. Is it possible that the DMCA specifically didn't mention software because of the likelihood of first amendment issues (by programmers infatuated with the logic of _Bernstein_)? For people who have read some of the record of Congressional thought on this, is there any evidence that the authors of the DMCA suspected that the anticircumvention rules might be subject to a challenge as unconstitutional on their face as applied to software? I _definitely_ think that that's why the MPAA says "device" rather than "program"; if they said "program", then people could quote them and make the first amendment argument sound at least a _little_ more plausible to the press. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:05:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18192 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:05:47 -0500 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18188 for ; Tue, 21 Mar 2000 19:05:46 -0500 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA07927; Tue, 21 Mar 2000 20:19:12 -0500 Date: Tue, 21 Mar 2000 20:19:12 -0500 From: Jim Bauer Message-Id: <200003220119.UAA07927@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Newsgroups: local.dvd-discuss In-Reply-To: <20000321223243.57716.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000321223243.57716.qmail@hotmail.com> you write: > >>c) DeCSS not a "technology, product, service, device, component, or part >>thereof" >>Incidentally, I think this is a fairly strong argument; I laugh whenever I >>read a plaintiff's attorney calling DeCSS a "circumvention device". > >Um man, it hurts me to say this have been ruled on already... >I was looking for some source code and bumped into this page... >http://personal.sip.fi/~lm/c2txt2c/ >Which had this to say... >"C source code as functional item >There is problem with free speech in the USA: >Judge Gwin of the Federal District Court of the Northern District of Ohio >has recently held that software is not protected by the First Amendment >because it is a ``functional device'' like a telephone circuit. Wouldn't that have the affect of nullifying software Copyrights? In other words, how can software be Copyrighted and the above both be true? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:07:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18339 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:07:07 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18330 for ; Tue, 21 Mar 2000 19:07:06 -0500 Received: from 208-58-196-247.s501.tnt10.lnhva.md.dialup.rcn.com ([208.58.196.247]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12XZp5-0005YX-00 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 20:20:35 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200003220043.TAA23838@soggy-fibers.ai.mit.edu> References: <20000321210144.21392.qmail@web504.mail.yahoo.com> <200003220043.TAA23838@soggy-fibers.ai.mit.edu> Date: Tue, 21 Mar 2000 20:18:42 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Paracopyright Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Bryan Taylor writes: >Well, by whatever power lets them say "No person shall" in 1201(b) >without specifying that the conduct they're banning requires a profit >motive. FWIW, that non-commercial sharing looks as much to me like >interstate commerce as, say, growing wheat in your own backyard for >private consumption. (For that matter, "non-commercial sharing and >cooperation" characterizes a lot of open-source development, and >there's not much controversy that if an open-source project infringes >a patent, they're liable...). IANAL, but, Individuals and organizations can be found criminally liable for copyright infringement, regardless of whether the infringement was conducted for commercial gain. The "No Electronic Theft Act" of 1997 criminalized the distribution of copies of copyrighted materials with a aggregate retail value of over $1000, within any 180 day period. See, generally, Lydia Pallas Loren, "Digitization, Commodification, Criminalization: the Evolution of Criminal Copyright Infringment, and the Importance of the Willfulness Requirement. " 77 Washington U. L Q. 835 Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:10:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19487 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:10:50 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19483 for ; Tue, 21 Mar 2000 19:10:49 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id UAA29536 for ; Tue, 21 Mar 2000 20:24:16 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA24053; Tue, 21 Mar 2000 20:24:15 -0500 (EST) Date: Tue, 21 Mar 2000 20:24:15 -0500 (EST) Message-Id: <200003220124.UAA24053@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright In-Reply-To: References: <20000321210144.21392.qmail@web504.mail.yahoo.com> <200003220043.TAA23838@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin writes: > >Bryan Taylor writes: > >Well, by whatever power lets them say "No person shall" in 1201(b) > >without specifying that the conduct they're banning requires a profit > >motive.... Errrmmm... for good or ill, that was me, not Bryan. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:15:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20052 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:15:26 -0500 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20049 for ; Tue, 21 Mar 2000 19:15:25 -0500 Received: from 208-58-196-247.s501.tnt10.lnhva.md.dialup.rcn.com ([208.58.196.247]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12XZx8-00077J-00 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 20:28:55 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200003220124.UAA24053@soggy-fibers.ai.mit.edu> References: <20000321210144.21392.qmail@web504.mail.yahoo.com> <200003220043.TAA23838@soggy-fibers.ai.mit.edu> <200003220124.UAA24053@soggy-fibers.ai.mit.edu> Date: Tue, 21 Mar 2000 20:28:12 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Paracopyright Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Jeremy Erwin writes: > > >Bryan Taylor writes: > > >Well, by whatever power lets them say "No person shall" in 1201(b) > > >without specifying that the conduct they're banning requires a profit > > >motive.... > >Errrmmm... for good or ill, that was me, not Bryan. Sorry about that. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:34:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22737 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:34:06 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA22734 for ; Tue, 21 Mar 2000 19:34:05 -0500 Received: (qmail 20764 invoked from network); 22 Mar 2000 01:44:02 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 22 Mar 2000 01:44:02 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id RAA00190; Tue, 21 Mar 2000 17:47:58 -0800 Date: Tue, 21 Mar 2000 17:47:58 -0800 Message-Id: <200003220147.RAA00190@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] RE: Free speech in software Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tser wrote: >I'f been reading with my little mind several words here in this groups, and >was been bubbling about that free speech. > >I do understand now that i may say anything i want to. As long as i follow >the rest of the constitution. > >But do i have also the right to "do" what i say ? so that my words gets a >result ? > >If "source code" is free speech. then the compiled version of the source >code is the "doing" of the source code, the result. > >I agree that source code is speech. But i disagree (I, human, tser) that the >product decss is speech, I think it's the "compiled result" of the source., >The action, laid inside those programing words. Nope. Running the program to copy which it can't except as video all other functions of the DVD content (which is a program as NES ROMs are programs) is the action. Source code is not thing but planning to build a rifle. Compiling is nothing but assembling a rifle. Murder is the offense. >Because, if every code, is speech, and i may say whatever i want to say, >nobody can stop me from writing anything i want, including, the most stupid >things where human beings ever came upon. Go forth and confuse the masses, you have the right to do so. >------- >The capability which decss introduced, to copy DVD's, does not more damage >to business dan videotapes did before. It rather promotes the DVD. Look at the anime market. Fans write their own stories for the characters they never created. Guess what? Later in the day they watch hours of anime together. Business is good, publicity is marvelous. >Any medium, which can not be copied, has no sex on it And does not fit in >your pocket, Will Fail. That's my law :-) > >VCD Failed in the past. >VCD became a succes, when there was DVD, and people Ripped DVD to VCD, among >all those In-the-bios-taken-with-a-handycam movies. > >So people started to play VCD"s in there DVD player. >others saw that, and started to uy DVD players. > >So Decss and all the media attention it had, did something good to the >bussiness. Precisely. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 19:44:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23673 for dvd-discuss-outgoing; Tue, 21 Mar 2000 19:44:00 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA23670 for ; Tue, 21 Mar 2000 19:43:58 -0500 Received: (qmail 21214 invoked from network); 22 Mar 2000 01:53:56 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 22 Mar 2000 01:53:56 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id RAA00952; Tue, 21 Mar 2000 17:57:51 -0800 Date: Tue, 21 Mar 2000 17:57:51 -0800 Message-Id: <200003220157.RAA00952@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu C is free speech see Bernstein and encryption code. Object code is not free speech. It is a device. It is also lab material and should be allowed. Also it occurs to me we shgould definitely go for Source/Speech + Object/Device argument. The second half is too important to muck up by calling it just free speech. It's bad enough the MPAA wants some precedents set. Let's not shoot ourselves in the foot. Fire Drake wrote: >>c) DeCSS not a "technology, product, service, device, component, or part >>thereof" >>Incidentally, I think this is a fairly strong argument; I laugh whenever I >>read a plaintiff's attorney calling DeCSS a "circumvention device". >Um man, it hurts me to say this have been ruled on already... >I was looking for some source code and bumped into this page... >http://personal.sip.fi/~lm/c2txt2c/ >Which had this to say... >"C source code as functional item >There is problem with free speech in the USA: >Judge Gwin of the Federal District Court of the Northern District of Ohio >has recently held that software is not protected by the First Amendment >because it is a ``functional device'' like a telephone circuit. The object code damnit not the source. >...So from what the first page said there's all ready been a decision made >about source code as free speech, and it's not, only I can't see any article >on it. I don't like the sound of that at all, dang, links can be barred, >source code isn't free speech... >...Way I see it, this is as bad as saying the pigs, I mean cops, can stop >people from telling you where the sell hot items. (I equate links as telling >you where to go and giving you directions.) And ruling that instruction on >making drugs aren't legal. No are the ingredients (I equate source code as >instructions and ingredients sort of a ready to go kit.)... Yeah we know and it looks like the second wave of lawyers are more informed. >...If any one can find the ruling please post it... Bernstein (where'd I see that on this list?). >------------------------------------- >ZZZ ZZZ ZZ ZZZ ZZ ZZ Z K K ZZZ >Z Z Z Z Z Z Z Z Z Z Z K K Z >ZZ Z ZZ ZZZ Z Z ZZ ZZZ KK ZZZ >Z Z Z Z Z Z Z Z Z Z Z K K Z >Z ZZZ Z Z ZZZ ZZ Z Z Z Z K K ZZZ >------------------------------------- > > >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 20:16:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28868 for dvd-discuss-outgoing; Tue, 21 Mar 2000 20:16:30 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA28865 for ; Tue, 21 Mar 2000 20:16:29 -0500 Received: (qmail 22692 invoked from network); 22 Mar 2000 02:26:26 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 22 Mar 2000 02:26:26 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id SAA03382; Tue, 21 Mar 2000 18:30:21 -0800 Date: Tue, 21 Mar 2000 18:30:21 -0800 Message-Id: <200003220230.SAA03382@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > > >--- greslin@linuxpower.org wrote: >> On Tue, Mar 21, 2000 at 09:23:54AM -0600, Steve Stearns wrote: > >> Actually it isn't even an argument. For 1201 purposes the strength >> of the algorithm (and the size of the keyspace) doesn't matter, >because >> none of that is tied into the legal definition of "effective" (i.e., >an >> "effective" protection method). DVD's could be "encrypted" with a >> simple 1-byte XOR and legally that would still constitute >> an "effective" method of protection under the definitions outlined in >17 >> USC 1201. > >Actually, it REALLY isn't an arguement. An "effective" protection >method simply would not be crackable in the real world. The DMCA has no >other purpose than to support inferior encryption technology. Um breaking and entering analogy. >This is the same oxymoronic idea that lead to the ban on exporting >strong encryption: that the best way to acheive security is to promote >and protect weakness. >__________________________________________________ >Do You Yahoo!? >Talk to your friends online with Yahoo! Messenger. >http://im.yahoo.com Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 20:23:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29790 for dvd-discuss-outgoing; Tue, 21 Mar 2000 20:23:56 -0500 Received: from web503.mail.yahoo.com (web503.mail.yahoo.com [128.11.68.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA29774 for ; Tue, 21 Mar 2000 20:23:51 -0500 Received: (qmail 28859 invoked by uid 60001); 22 Mar 2000 02:37:09 -0000 Message-ID: <20000322023709.28858.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Tue, 21 Mar 2000 18:37:08 PST Date: Tue, 21 Mar 2000 18:37:08 -0800 (PST) From: Bryan Taylor Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > I _definitely_ think that that's why the MPAA says "device" rather > than "program"; if they said "program", then people could quote them > and make the first amendment argument sound at least a _little_ > more plausible to the press. I agree with this - they use the word for its propaganda value. For this reason, I recommend airing the counter arguement. "DeCSS is not covered by 1201 because it doesn't meet the requirement that it be a 'device, ... ' . Congress did not mean to ban software, or they would have used this word specifically. They view software, not as a device, but rather as a literary work. Congress meant to ban 'black boxes'. DeCSS is not a box, and it certainly isn't black, since it's workings are entirely exposed, as they are given away for free." __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 20:39:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31990 for dvd-discuss-outgoing; Tue, 21 Mar 2000 20:39:50 -0500 Received: from pie.cty-alum.org (pie.cty-alum.ORG [204.94.189.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA31986 for ; Tue, 21 Mar 2000 20:39:45 -0500 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id SAA25952 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 18:49:56 -0800 Date: Tue, 21 Mar 2000 18:49:56 -0800 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Message-ID: <20000321184956.U23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000322023709.28858.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000322023709.28858.qmail@web503.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Mar 21, 2000 at 06:37:08PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Seth David Schoen wrote: > > > I _definitely_ think that that's why the MPAA says "device" rather > > than "program"; if they said "program", then people could quote them > > and make the first amendment argument sound at least a _little_ > > more plausible to the press. > > I agree with this - they use the word for its propaganda value. For > this reason, I recommend airing the counter arguement. > > "DeCSS is not covered by 1201 because it doesn't meet the requirement > that it be a 'device, ... ' . Congress did not mean to ban software, or > they would have used this word specifically. They view software, not as > a device, but rather as a literary work. Congress meant to ban 'black > boxes'. DeCSS is not a box, and it certainly isn't black, since it's > workings are entirely exposed, as they are given away for free." I think this can be made narrower: "DeCSS is not a circumvention device prohibited by 1201, because it is not a device. Regardless of any other possible reasons why DeCSS _might_ be prohibited by 1201, the particular claim about DeCSS advanced by the plaintiffs is false." I think this is meaningful, but I'd have to look at their complaint to see whether it actually asserts that DeCSS is a "device". If it does, I'd consider this a possibly fruitful line of argument. Again, it doesn't mean that 1201 doesn't prohibit DeCSS; it just means that 1201 doesn't prohibit DeCSS for the reason the plaintiffs (might have) claimed it does. The "Congress did not mean to ban software" argument is interesting, and it would be nice to be able to make it, but I'd still like to know whether it's supported by legislative history. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 20:57:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02313 for dvd-discuss-outgoing; Tue, 21 Mar 2000 20:57:06 -0500 Received: from hotmail.com (f68.law3.hotmail.com [209.185.241.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA02310 for ; Tue, 21 Mar 2000 20:57:05 -0500 Received: (qmail 21322 invoked by uid 0); 22 Mar 2000 03:10:01 -0000 Message-ID: <20000322031001.21321.qmail@hotmail.com> Received: from 206.245.243.77 by www.hotmail.com with HTTP; Tue, 21 Mar 2000 19:10:01 PST X-Originating-IP: [206.245.243.77] From: "Fire Drake" To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) Date: Tue, 21 Mar 2000 20:10:01 MST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >In article <20000321223243.57716.qmail@hotmail.com> you write: > > > >>c) DeCSS not a "technology, product, service, device, component, or part > >>thereof" > >>Incidentally, I think this is a fairly strong argument; I laugh whenever >I > >>read a plaintiff's attorney calling DeCSS a "circumvention device". > > > >Um man, it hurts me to say this have been ruled on already... > >I was looking for some source code and bumped into this page... > >http://personal.sip.fi/~lm/c2txt2c/ > >Which had this to say... > >"C source code as functional item > >There is problem with free speech in the USA: > >Judge Gwin of the Federal District Court of the Northern District of Ohio > >has recently held that software is not protected by the First Amendment > >because it is a ``functional device'' like a telephone circuit. > > >Wouldn't that have the affect of nullifying software Copyrights? >In other words, how can software be Copyrighted and the above both be true? > >-- >Jim Bauer, jfbauer@home.com I don't belive both are true, as I see it copyrights only apply to information and patents to devices but I guess I could be wroung. ------------------------------------- ZZZ ZZZ ZZ ZZZ ZZ ZZ Z K K ZZZ Z Z Z Z Z Z Z Z Z Z Z K K Z ZZ Z ZZ ZZZ Z Z ZZ ZZZ KK ZZZ Z Z Z Z Z Z Z Z Z Z Z K K Z Z ZZZ Z Z ZZZ ZZ Z Z Z Z K K ZZZ ------------------------------------- ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 21:21:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07718 for dvd-discuss-outgoing; Tue, 21 Mar 2000 21:21:13 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA07715 for ; Tue, 21 Mar 2000 21:21:13 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA29443 for ; Tue, 21 Mar 2000 22:34:39 -0500 (EST) Message-Id: <4.2.2.20000321220334.00c286a0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 21 Mar 2000 22:34:32 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) In-Reply-To: <200003220119.UAA07927@emperor.hwrd1.md.home.com> References: <20000321223243.57716.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:19 PM 3/21/00 -0500, jfb@home.com wrote: >In article <20000321223243.57716.qmail@hotmail.com> you write: > > >"C source code as functional item > >There is problem with free speech in the USA: > >Judge Gwin of the Federal District Court of the Northern District of Ohio > >has recently held that software is not protected by the First Amendment > >because it is a ``functional device'' like a telephone circuit. > > >Wouldn't that have the affect of nullifying software Copyrights? >In other words, how can software be Copyrighted and the above both be true? There's a tension between the "inherently functional" characteristics of software that support export prohibitions (and make reverse engineering of software to get at the functional parts fair use) and the "expressive" characteristics that enable it to be copyrighted and suggest that it should be regarded as speech. The mix of functional and expressive will be different for each work. (How this fits in with any of the arguments, I'm not sure...) --Wendy wendy@seltzer.com http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 21:50:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12202 for dvd-discuss-outgoing; Tue, 21 Mar 2000 21:50:08 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12199 for ; Tue, 21 Mar 2000 21:50:07 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id XAA11449 for ; Tue, 21 Mar 2000 23:03:34 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA24788; Tue, 21 Mar 2000 23:03:32 -0500 (EST) Date: Tue, 21 Mar 2000 23:03:32 -0500 (EST) Message-Id: <200003220403.XAA24788@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) In-Reply-To: <20000322023709.28858.qmail@web503.mail.yahoo.com> References: <20000322023709.28858.qmail@web503.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > "DeCSS is not covered by 1201 because it doesn't meet the requirement > that it be a 'device, ... ' . Congress did not mean to ban software, or > they would have used this word specifically. They view software, not as > a device, but rather as a literary work. Congress meant to ban 'black > boxes'. DeCSS is not a box, and it certainly isn't black, since it's > workings are entirely exposed, as they are given away for free." I think we've been through this before --- the 1201(a)(2) and (b) bans are on "any technology, product, service, device, component, or part thereof..." which circumvents an access control measure; it's not just devices. This sure looks to me like it's meant to be widely encompassing, barring a very specific statement in the legislative history that software was specifically meant to be excluded. Software can pretty clearly be considered a "product" or "technology"... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 22:32:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23075 for dvd-discuss-outgoing; Tue, 21 Mar 2000 22:32:53 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA23046 for ; Tue, 21 Mar 2000 22:32:52 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id WAA22973 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 22:46:17 -0600 Date: Tue, 21 Mar 2000 22:46:17 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Paracopyright Message-ID: <20000321224617.A22947@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000321210548.10342.qmail@web503.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000321210548.10342.qmail@web503.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Mar 21, 2000 at 01:05:48PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 01:05:48PM -0800, Bryan Taylor wrote: > > --- Eric Seppanen wrote: > > I also think that the congressional quotes should be taken with > > a grain of salt unless the actual wording of the law supports > > what they said. > > With regard to fair use, freedom of speech, and no prior restraint on > speech, the law does contain actual wording that says these things. A > judge could easily choose to interpret this expansively and site the > Congression record to support a textually based opinion. OK, I understand a judge could interpret 1201 in a variety of ways. But _this_ judge (Kaplan) seems to have been unreceptive to this argument so far. Although I suppose the various quotes could be recycled in Connecticut... Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 22:40:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23876 for dvd-discuss-outgoing; Tue, 21 Mar 2000 22:40:28 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA23873 for ; Tue, 21 Mar 2000 22:40:28 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id E0DA5770C; Tue, 21 Mar 2000 22:54:23 -0600 (CST) Date: Tue, 21 Mar 2000 22:54:23 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Message-ID: <20000321225423.B3875@arh1176.urh.uiuc.edu> References: <200003220230.SAA03382@ns1.filetron.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <200003220230.SAA03382@ns1.filetron.com>; from rmarian@linuxstart.com on Tue, Mar 21, 2000 at 06:30:21PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Mar 21, 2000 at 06:30:21PM -0800, Rares Marian wrote: > Um breaking and entering analogy. The problem with using this analogy comes from the issue of ownership of the media that holds the encrypted data. If you bought a house but the previous owner of the house had left the front door locked and not given you a key (or insisted that you pay more to get an "official" key) it certainly would *not* be breaking and entering for you to pick the lock, or hire a locksmith to let you in, or whatever. There is some tricky logic in here, especially when we compare this to the way software is sold. With software it is possible to buy media but only have rights to the data on the media under the terms of a license you must accept. This means that you don't actually own the software, you just have permission to use it under certain conditions. As far as we (as in all consumers) can tell, DVD video is not sold simply as a license to use, or under a broad "For home viewing only" license. The MPAA probably doesn't agree with this, as they want to maintain control over the movie as much as they can. The issue that causes this kind of of ownership conflicts, is the fact that digital data can be reproduced perfectly and it is impossible to tell the reproduction from the original. Thats the inherent problem with copy control. If something exists in digital form, it can be copied. If a copy is made onto the same media the original was on, it is impossible to tell that the copy is not another original. Encryption works on another angle to this problem. It makes it so that the data you have is useless unless you have a key and/or know the algorithm to decrypt it with. There are a couple problems it still has. Firstly, any encryption can be broken by anyone with enough computing power and enough time to attack it (more for some than for others). Second, since keys are also digital, if not themselves encrypted, they can be distributed just as easily as the original data. The law has lots trouble knowing what to do about this. Copyright is difficult to enforce when you cannot tell what is the original and what is an illegal copy. The DMCA is a (rather poor) attempt to fix this. It gives special protection to any digital data that is encrypted (or scrambled or something) and requires some kind of key from the copyright holder. The problem with it is that it makes it illegal to break the encryption on all copyrighted data, not just data owned by sombody else. So in the analogy I had at the begining of this message, it makes it illegal to break the lock on the house you just bought. The point the previous poster (who's name I've snipped) was making is that it protects regardless of how secure the lock was in the first place. The door of the house could be closed only with a trivially simple latch, but to get in without a "key" is considered breaking and entering under the DMCA. I know that this kind of metaphor only works so far when applied to IP crimes, so I will give up on that now. The real issue is that the MPAA is trying to have an exceptionally weak security system protected by law, instead of investing the time and money it would take to develop a technically elegant solution to the problem of copy control. Sorry for the long rambling email. Not sure how much this all helps, but it was just what I came up with as I went.... -- Steven Barker scbarker@uiuc.edu Don't let nobody tell you what you cannot do; don't let nobody tell you what's impossible for you; don't let nobody tell you what you got to do, or you'll never know ... what's on the other side of the rainbow... remember, if you don't follow your dreams, you'll never know what's on the other side of the rainbow... -- melba moore, "the other side of the rainbow" From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 22:49:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29054 for dvd-discuss-outgoing; Tue, 21 Mar 2000 22:49:30 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29019 for ; Tue, 21 Mar 2000 22:49:28 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id XAA23113 for dvd-discuss@eon.law.harvard.edu; Tue, 21 Mar 2000 23:02:49 -0600 Date: Tue, 21 Mar 2000 23:02:49 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA preparing investigatng of VDDV, A Commercial player capable with a "hidden" menu Message-ID: <20000321230249.B22947@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200003211635.RAA14585@dwaal.net> <20000321104959.A21264@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1us In-Reply-To: <20000321104959.A21264@thud.reric.net>; from eds@reric.net on Tue, Mar 21, 2000 at 10:49:59AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Just for the record, Wired has replaced the article quoted below, removing claims that it somehow "has the ability to remove the DVD Content Scrambling System". One nice thing about the internet-- sloppy journalism doesn't require a "corrections" column; just replace the article :) On Tue, Mar 21, 2000 at 10:49:59AM -0600, Eric Seppanen wrote: > I can't believe how inaccurate this article is. > > The player can: > - play mp3 (music) from CDROM (or CD-R...) > - disable Macrovision on output > - change region codes easily > > In addition, you can turn off CSS decryption. This has no purpose, other > than perhaps discovering which discs are encrypted and which aren't. It > does not have, as the article implies, any way to retrieve decrypted data > from the disc in digital form. > > Again, this is just plain wrong. > > Eric > > On Tue, Mar 21, 2000 at 05:35:01PM +0100, tser wrote: > > See also Wired.com http://www.wired.com/news/technology/0,1282,35028,00.html > > > > Developed in China by Visual Disc and Digital Video Corp. (VDDV) and sold in > > the United States by Apex Digital Inc, the Apex player is attracting attention > > for reasons besides its low price of US$169.95. > > > > Unlike other DVD players, the Apex can play DVD movies created anywhere in the > > world. Regions are assigned specific numbers so, for example, DVDs created in > > Region 1 –- the United States -– can only be played in that area. But by > > accessing a hidden menu in the Apex player, users can turn off regional > > encoding. > > > > The player also has the ability to remove the DVD Content Scrambling System > > (CSS). Doing so enables users to copy DVDs, similar to the functionality of the > > much-maligned DeCSS utility. > > > > The CSS removal option has piqued the interest of the MPAA. > > > > "We are currently looking at the player to determine whether any action is > > warranted," said Emily Cutner, a spokeswoman for the MPAA. > > > > The DVD player is also the first in the United States to support the > > controversial MP3 secure music format. Users can insert a CD-ROM full of MP3 > > files and the player brings up a menu on the television to play back the songs. > > Hidden features included in a DVD player released in January have the Motion > > Picture Association of America contemplating legal action. > > Thanks to Nerdout.com, both users and the MPAA are aware that the Apex AD-600A > > player's DVD copyright protection scheme and regional encoding features can be > > overridden. > > > > The Recording Industry Association of America (RIAA) -- which has sued MP3.com, > > declaring the MP3 format a copyright violation -- was unaware of the Apex > > player and its capabilities and declined to comment. > > > > Apex's maker said the ability to remove regional encoding and CSS protection > > were included but were intended only for developers. End users were not > > supposed to be able to access that menu or those features. > > > > "Twenty-four manufacturers use the same menu chip as in ours, so they all have > > the same capability," said Colton Manley, a spokesman for Apex, in Ontario, > > California. "Certainly our intention is not to sell anything that will cause > > any problems." > > > > But users are reacting positively. > > > > "I have no complaints! It's been running like a charm. It really is worth the > > purchase, you get a lot of bang for your buck," said one person on the > > alt.video.dvd newsgroup. > > > > "So far I'm impressed with it. It produces a great picture, and combined with > > the ability to turn off region locks and macrovision, it's a real winner!" said > > another newsgroup posting. > > > > Still, Apex officials said the next version of the Apex DVD player will have > > the hidden menu disabled. > > > > The company is also planning to release three new DVD players as well as a car > > player with the same features as the AD-600A. The MD-100 will fit in a car > > radio slot and feature DVD, CD, and MP3 playback plus standard AM and FM > > playback. > > > > Apex expects its biggest potential market will be people who drive SUVs, where > > manufacturers have been installing television sets in the back seat. The MD-100 > > will be available next month for $499. The company is still working on getting > > it into retail outlets. > > > > (copyed from wired.com) From dvd-discuss-owner@eon.law.harvard.edu Tue Mar 21 23:19:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA04954 for dvd-discuss-outgoing; Tue, 21 Mar 2000 23:19:55 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA04951 for ; Tue, 21 Mar 2000 23:19:54 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id AAA17459 for ; Wed, 22 Mar 2000 00:33:21 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA25069; Wed, 22 Mar 2000 00:33:20 -0500 (EST) Date: Wed, 22 Mar 2000 00:33:20 -0500 (EST) Message-Id: <200003220533.AAA25069@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology In-Reply-To: <20000321225423.B3875@arh1176.urh.uiuc.edu> References: <200003220230.SAA03382@ns1.filetron.com> <20000321225423.B3875@arh1176.urh.uiuc.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: > This means that you don't actually own the software, you just have > permission to use it under certain conditions. As far as we (as in > all consumers) can tell, DVD video is not sold simply as a license > to use, or under a broad "For home viewing only" license. The MPAA > probably doesn't agree with this, as they want to maintain control > over the movie as much as they can. Well, if the MPAA wants to assert that some more restrictive license applies, they should be able to produce the text (even under UCITA, I don't *think* you can be held to be bound by a contract you've never actually seen). The closest thing that's been reported on this list is the "licensed for home viewing" text on the DVD boxes... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 01:12:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA15281 for dvd-discuss-outgoing; Wed, 22 Mar 2000 01:12:47 -0500 Received: from mail01.syd.optusnet.com.au (mail01.syd.optusnet.com.au [203.2.75.104]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA15278 for ; Wed, 22 Mar 2000 01:12:43 -0500 Received: from dingoblue.net.au (darax1-237.dialup.optusnet.com.au [198.142.5.237]) by mail01.syd.optusnet.com.au (8.9.3/8.9.3) with ESMTP id SAA17999 for ; Wed, 22 Mar 2000 18:26:06 +1100 Message-ID: <38D7CBFC.41739351@dingoblue.net.au> Date: Wed, 22 Mar 2000 04:52:36 +0930 From: Ross X-Mailer: Mozilla 4.5 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reality Check References: <20000321213929.53847.qmail@hotmail.com> Content-Type: multipart/alternative; boundary="------------4139D56F22B2151D0320A8EF" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --------------4139D56F22B2151D0320A8EF Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Defendant wins Plaintiff appeals and again loses Defendant counter sues for the unconstitutional nature of CSS Defendant (now plaintiff) wins the 2nd case - appeal gives rise to the same outcome Reasoning - CSS prevents legitimate buyers from 'fairly using' their product - CSS has significantly reduced (eliminated) competition - The judge has a history of standing up for the 'little-guy' (Kaplan had a reputation of being intelligent, fair, and generally pro-"little guy" - Ian Hay) --------------4139D56F22B2151D0320A8EF Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Defendant wins
Plaintiff appeals and again loses
Defendant counter sues for the unconstitutional nature of CSS
Defendant (now plaintiff) wins the 2nd case - appeal gives rise to the same outcome

Reasoning
- CSS prevents legitimate buyers from 'fairly using' their product
- CSS has significantly reduced (eliminated) competition
- The judge has a history of standing up for the 'little-guy' (Kaplan had a reputation
of being intelligent, fair, and generally pro-"little guy" - Ian Hay) --------------4139D56F22B2151D0320A8EF-- From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 08:39:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA12845 for dvd-discuss-outgoing; Wed, 22 Mar 2000 08:39:20 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA12842 for ; Wed, 22 Mar 2000 08:39:19 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id JAA19281 for ; Wed, 22 Mar 2000 09:52:47 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA26363; Wed, 22 Mar 2000 09:52:47 -0500 (EST) Date: Wed, 22 Mar 2000 09:52:47 -0500 (EST) Message-Id: <200003221452.JAA26363@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Definitions of "effective" in 1201... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While parsing 17 USC 1201 yesterday evening, I noticed something a bit peculiar about it --- it actually contains *two* definitions of the word "effective", which are subtly different. For 1201(a), the governing definition is the one in 1201(a)(3)(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. but for 1201(b), the trafficking ban, the definition is 1201(b)(2)(B), a technological measure ''effectively protects a right of a copyright owner under this title'' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title. The first of these definitions requires "authority of the copyright owner", but the second simply requires that the measure "limits the exercise of a right of a copyright owner" (which would, I believe, include public, but not private, performance). But the lack of any conditions on *how* the "right of a copyright owner" is limited in 1201(b) seems a bit peculiar --- if I was playing the "break this spec" game that comes up in standards comittees, I might suggest that trafficking in antivirus software is banned under this subsection because it disables viruses which might otherwise keep you from running your software DVD player at all (thereby limiting the exercise of a right of a copyright owner). So, it looks to me like you have to read in a condition something like 1201(a)'s "with the authority" for the 1201(b) language to make any sense. At any rate, once again, the 1201(a) language seems to have been drafted with considerably more care than 1201(b). Weird. Also, to give the dead horse one more clout, neither of these definitions has anything at all to do with the cryptological strength of any of the technology involved. FWIW, the original and amended complaint in the New York case cites (and quotes) 1201(a)(2), bringing the first definition into play. Which brings up the question of chains of authority --- CSS, in the ordinary course of its operation, requires a player key which is obtained from the DVDCCA, not the copyright owner... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 08:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA12889 for dvd-discuss-outgoing; Wed, 22 Mar 2000 08:39:56 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA12886 for ; Wed, 22 Mar 2000 08:39:55 -0500 Received: (qmail 19533 invoked from network); 22 Mar 2000 14:49:54 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 22 Mar 2000 14:49:54 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id GAA15519; Wed, 22 Mar 2000 06:53:49 -0800 Date: Wed, 22 Mar 2000 06:53:49 -0800 Message-Id: <200003221453.GAA15519@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker wrote: >The problem with using this analogy comes from the issue of ownership of the >media that holds the encrypted data. If you bought a house but the previous >owner of the house had left the front door locked and not given you a key >(or insisted that you pay more to get an "official" key) it certainly would >*not* be breaking and entering for you to pick the lock, or hire a locksmith to >let you in, or whatever. You're licensing the content not the media. Not that there's anything close to that in the function of DeCSS. >There is some tricky logic in here, especially when we compare this to the way >software is sold. With software it is possible to buy media but only have >rights to the data on the media under the terms of a license you must accept. >This means that you don't actually own the software, you just have permission >to use it under certain conditions. As far as we (as in all consumers) can >tell, DVD video is not sold simply as a license to use, or under a broad "For >home viewing only" license. The MPAA probably doesn't agree with this, as they >want to maintain control over the movie as much as they can. > >The issue that causes this kind of of ownership conflicts, is the fact that >digital data can be reproduced perfectly and it is impossible to tell the >reproduction from the original. Thats the inherent problem with copy control. >If something exists in digital form, it can be copied. If you have the hardware to do it. That hardware costs $4000. >If a copy is made onto >the same media the original was on, it is impossible to tell that the copy is >not another original. >Encryption works on another angle to this problem. It makes it so that the >data you have is useless unless you have a key and/or know the algorithm to >decrypt it with. There are a couple problems it still has. Firstly, any >encryption can be broken by anyone with enough computing power and enough time >to attack it (more for some than for others). Second, since keys are also >digital, if not themselves encrypted, they can be distributed just as easily as >the original data. > >The law has lots trouble knowing what to do about this. Copyright is difficult >to enforce when you cannot tell what is the original and what is an illegal >copy. The DMCA is a (rather poor) attempt to fix this. It gives special >protection to any digital data that is encrypted (or scrambled or something) >and requires some kind of key from the copyright holder. We need that 3 way relationship I mentioned before. >The problem with it is that it makes it illegal to break the encryption on all >copyrighted data, not just data owned by sombody else. So in the analogy I had >at the begining of this message, it makes it illegal to break the lock on the >house you just bought. The point the previous poster (who's name I've snipped) >was making is that it protects regardless of how secure the lock was in the >first place. The door of the house could be closed only with a trivially >simple latch, but to get in without a "key" is considered breaking and entering >under the DMCA. > >I know that this kind of metaphor only works so far when applied to IP crimes, >so I will give up on that now. The real issue is that the MPAA is trying to >have an exceptionally weak security system protected by law, instead of >investing the time and money it would take to develop a technically elegant >solution to the problem of copy control. That's a side issue. That's in the category of the 56-bit export limits. It's bad because its absurd to protect weak tech by law. It isn't bad because the tech is weak. The intent to protect is understandable. Let's stick to the real problems in 17:1201. >Sorry for the long rambling email. Not sure how much this all helps, but it >was just what I came up with as I went.... Aren't we all to some extent? >-- > Steven Barker > scbarker@uiuc.edu > >Don't let nobody tell you what you cannot do; >don't let nobody tell you what's impossible for you; >don't let nobody tell you what you got to do, >or you'll never know ... what's on the other side of the rainbow... >remember, if you don't follow your dreams, >you'll never know what's on the other side of the rainbow... > -- melba moore, "the other side of the rainbow" --good quote Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 09:00:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA16371 for dvd-discuss-outgoing; Wed, 22 Mar 2000 09:00:38 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA16368 for ; Wed, 22 Mar 2000 09:00:37 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id RAA22429 for ; Wed, 22 Mar 2000 17:14:03 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 22 Mar 2000 17:14:01 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) In-Reply-To: <20000320124212.X13379@cty-alum.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 20 Mar 2000, Seth David Schoen wrote: >> c) DeCSS not a "technology, product, service, device, component, >> or part thereof" > >Incidentally, I think this is a fairly strong argument; I laugh whenever >I read a plaintiff's attorney calling DeCSS a "circumvention device". >That is not good use of terminology. This sounds like word games: the intention of the wording probably includes software as well. Care is needed with an argument like this so as not to make a bad impression on the court. But OTOH; 1201 singles out software in the reverse engineering exception and hence does not, at least in that subclause, treat software on an equal footing with other 'devices'. It can be argued that if software was to be included, it would have been listed explicitly. Congressional intent seems to be geared towards the so called 'black-boxes', too. Is there a commonly agreed upon definition of a 'black box' and does its definition encompass software as well? The term is used quite a bit in the DMCA background materials, e.g. congressional debate. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 09:37:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA24205 for dvd-discuss-outgoing; Wed, 22 Mar 2000 09:37:58 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA24201 for ; Wed, 22 Mar 2000 09:37:56 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA21074 for ; Wed, 22 Mar 2000 09:51:25 -0600 Date: Wed, 22 Mar 2000 09:51:25 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology In-Reply-To: <200003221453.GAA15519@ns1.filetron.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 22 Mar 2000, Rares Marian wrote: > You're licensing the content not the media. Not that there's anything > close to that in the function of DeCSS. You aren't licensing anything. There is no license agreement involved in the purchase of DVD. You are bound by copyright, but there are no extraneous obligations put upon the purchaser of a DVD by the copyright holder. > >The issue that causes this kind of of ownership conflicts, is the fact that > >digital data can be reproduced perfectly and it is impossible to tell the > >reproduction from the original. Thats the inherent problem with copy control. > >If something exists in digital form, it can be copied. > > If you have the hardware to do it. That hardware costs $4000. That's a poor argument. How much did a CD Recordable drive cost 5 years ago? Now you can pick them up for under $200 and soon you'll be able to pick up a box of 12 used ones for 50 cents at a Hamfest. Do you believe that DVD recorders are going to stay up at $4000? Give it two or three years, and we'll be picking them up for under $200 too. Of course by then the new DVD replacement will be out with higher capacities and good encryption and make this whole case a moot point. For the next decade or so at least, assume that the barriers of processor speed, storage capacity, and bandwidth really don't exist. If something is not possible right now because of one of these limitations (or at some extrodinary cost imposed by the limitation), it will be available soon. > That's a side issue. That's in the category of the 56-bit export > limits. It's bad because its absurd to protect weak tech by law. It > isn't bad because the tech is weak. The intent to protect is > understandable. Actually, somebody posted a good message about why the encryption on DVD is the way it is and it hasn't anything to do with export controls. Basically what it comes down to is that low bit encryption is cheaper to create hardware for, so they went with a minimalist protection scheme to reduce costs. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 11:36:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA08846 for dvd-discuss-outgoing; Wed, 22 Mar 2000 11:36:29 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA08843 for ; Wed, 22 Mar 2000 11:36:23 -0500 Received: (qmail 16923 invoked by uid 60001); 22 Mar 2000 17:49:37 -0000 Message-ID: <20000322174937.16922.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Wed, 22 Mar 2000 09:49:37 PST Date: Wed, 22 Mar 2000 09:49:37 -0800 (PST) From: Bryan Taylor Subject: Re: Free speech in software (was: Re: [dvd-discuss] An Outline) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Sampo A Syreeni wrote: > [...] But OTOH; 1201 singles out software in the reverse > engineering exception and hence does not, at least in > that subclause, treat software on an equal footing with other > 'devices'. It can be argued that if software was to be included, > it would have been listed explicitly. Congressional intent seems > to be geared towards the so called 'black-boxes', too. Is there > a commonly agreed upon definition of a 'black box' and does its > definition encompass software as well? The term is used > quite a bit in the DMCA background materials, e.g. congressional > debate. Factors supporting software not in "technology, device, ...": 1. "Software" or "Computer Program" not listed specifically, but Congress takes pains to identify this class specially in 1201(f). 2. Better to err on the side of caution, because it's more easily fixed by Congress and avoids judicial activism creating unintended law. 3. Computer Programs considered 'literary works' by Congress and Courts (2nd Circuit in Altai), implicates free expression, press 4. 1201(c)(4) exempts free speech "using ... computing products", 5. 1203(b)(1) says Courts shall "in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution" 6. 'Black-Boxes' term indicates some sort of physical item (software is not a "box") Factors supporting software IS in "technology, device, ...": 1. Technology is broad, includes "Information Technology" 2. Real Network used 1201(a)(2) to ban Streambox software Rebuttals: 1. Technology is vague, so it should be interpreted in the context of the other words used 2. Streambox did not raise this defense and they SELL their speech. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 13:30:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28446 for dvd-discuss-outgoing; Wed, 22 Mar 2000 13:30:02 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA28443 for ; Wed, 22 Mar 2000 13:30:01 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 59201770C; Wed, 22 Mar 2000 13:43:58 -0600 (CST) Date: Wed, 22 Mar 2000 13:43:58 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Message-ID: <20000322134358.B5684@arh1176.urh.uiuc.edu> References: <200003221452.JAA26363@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <200003221452.JAA26363@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Mar 22, 2000 at 09:52:47AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 22, 2000 at 09:52:47AM -0500, Robert S. Thau wrote: > While parsing 17 USC 1201 yesterday evening, I noticed something a bit > peculiar about it --- it actually contains *two* definitions of the > word "effective", which are subtly different. For 1201(a), the > governing definition is the one in 1201(a)(3)(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. > > but for 1201(b), the trafficking ban, the definition is 1201(b)(2)(B), > > a technological measure ''effectively protects a right of a > copyright owner under this title'' if the measure, in the > ordinary course of its operation, prevents, restricts, or > otherwise limits the exercise of a right of a copyright owner > under this title. I think the problem with this is that there is another trafficking ban, 1201(a)(2) which uses the same definition you quote from 1201(a)(3)(B). I hadn't noticed the difference in language before though between 1201(a)(2) and 1201(b). Honestly I just realized there were two trafficking bans when I looked it up to reply here. The MPAA's complaint refers to 1201(a)(2), not 1201(b) so your arguments here don't really help. If they did, your analysis be more usefull. -- Steven Barker scbarker@uiuc.edu In war it is not men, but the man who counts. -- Napoleon From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 13:32:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31106 for dvd-discuss-outgoing; Wed, 22 Mar 2000 13:32:55 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31071 for ; Wed, 22 Mar 2000 13:32:53 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA25068 for dvd-discuss@eon.law.harvard.edu; Wed, 22 Mar 2000 13:46:17 -0600 Date: Wed, 22 Mar 2000 13:46:17 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] mpaa threat letters Message-ID: <20000322134617.A25026@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm sure everyone has seen the news that the MPAA has been sending out threatening letters based on the New York and California injunctions. 2600 has the news that some poor guy got fired from his job at the University of Wisconsin, Milwaukee, because of these threats: http://www.geocities.com/zkarpinski/imagepage.html various other places have copies of the same letter; cryptome.org jumps to mind: http://cryptome.org/dvd-mpaa-ccd.htm These letters seem to be obviously misleading with respect to the scope of the injunctions. Is there anything that can be done about this? Could the EFF ask the court to order the MPAA to stop threatening people uninvolved with the case? From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 14:20:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08290 for dvd-discuss-outgoing; Wed, 22 Mar 2000 14:20:01 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA08287 for ; Wed, 22 Mar 2000 14:20:01 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id PAA26687 for ; Wed, 22 Mar 2000 15:33:24 -0500 (EST) Message-Id: <4.2.2.20000322151722.00bdd2b0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 22 Mar 2000 15:33:13 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Fwd: MPAA v. 2600 Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu jya sent this to Cyberia: >Two of the three defendants in the New York MPAA case have >withdrawn by way of consent judgements, leaving only "2600" >which succeeds its publisher, Emmanuel Goldstein, as defendant. > >Martin Garbus has joined the defense team, and represented >the defense at a hearing Monday before Judge Kaplan at which >a trial date of December 5 was set. wendy@seltzer.com Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 14:36:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA11391 for dvd-discuss-outgoing; Wed, 22 Mar 2000 14:36:53 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA11388 for ; Wed, 22 Mar 2000 14:36:52 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 75E33770C; Wed, 22 Mar 2000 14:50:50 -0600 (CST) Date: Wed, 22 Mar 2000 14:50:50 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa threat letters Message-ID: <20000322145050.D5684@arh1176.urh.uiuc.edu> References: <20000322134617.A25026@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000322134617.A25026@thud.reric.net>; from eds@reric.net on Wed, Mar 22, 2000 at 01:46:17PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Mar 22, 2000 at 01:46:17PM -0600, Eric Seppanen wrote: > I'm sure everyone has seen the news that the MPAA has been sending out > threatening letters based on the New York and California injunctions. > 2600 has the news that some poor guy got fired from his job at the > University of Wisconsin, Milwaukee, because of these threats: > > http://www.geocities.com/zkarpinski/imagepage.html > > various other places have copies of the same letter; cryptome.org jumps > to mind: > > http://cryptome.org/dvd-mpaa-ccd.htm > > These letters seem to be obviously misleading with respect to the scope of > the injunctions. Is there anything that can be done about this? Could > the EFF ask the court to order the MPAA to stop threatening people > uninvolved with the case? It seems to me that the guy who was fired would have good grounds for a slander suit against the MPAA. They accuse him of violating an injunction which clearly does not apply to him. Well, at least they imply that he is violating it, without quite accusing him. they say "If you are bound by an injunction...". Of course, you can't fault the U of W too much, since it might be found to be illegal under 1201(a)(2) to distribute DeCSS. So other than suing the MPAA for the harm they caused him, he's probably out of luck. -- Steven Barker scbarker@uiuc.edu I have many CHARTS and DIAGRAMS.. From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 15:42:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23025 for dvd-discuss-outgoing; Wed, 22 Mar 2000 15:42:55 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA23022 for ; Wed, 22 Mar 2000 15:42:55 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id QAA11977 for ; Wed, 22 Mar 2000 16:56:23 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA29238; Wed, 22 Mar 2000 16:56:23 -0500 (EST) Date: Wed, 22 Mar 2000 16:56:23 -0500 (EST) Message-Id: <200003222156.QAA29238@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <20000322134358.B5684@arh1176.urh.uiuc.edu> References: <200003221452.JAA26363@soggy-fibers.ai.mit.edu> <20000322134358.B5684@arh1176.urh.uiuc.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: > I think the problem with this is that there is another trafficking > ban, 1201(a)(2) which uses the same definition you quote from > 1201(a)(3)(B). I hadn't noticed the difference in language before > though between 1201(a)(2) and 1201(b). Honestly I just realized > there were two trafficking bans when I looked it up to reply here. > The MPAA's complaint refers to 1201(a)(2), not 1201(b) so your > arguments here don't really help. If they did, your analysis be > more usefull. Actually, the 1201(a)(3) language, being more restrictive, may actually be more helpful on our side, particularly since that's what they're suing under. I just thought it might be useful to bear in mind that 1201(b) is lurking in the background... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 16:12:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29838 for dvd-discuss-outgoing; Wed, 22 Mar 2000 16:12:22 -0500 Received: from web502.mail.yahoo.com (web502.mail.yahoo.com [128.11.68.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA29834 for ; Wed, 22 Mar 2000 16:12:19 -0500 Received: (qmail 5024 invoked by uid 60001); 22 Mar 2000 22:25:37 -0000 Message-ID: <20000322222537.5023.qmail@web502.mail.yahoo.com> Received: from [131.44.121.4] by web502.mail.yahoo.com; Wed, 22 Mar 2000 14:25:37 PST Date: Wed, 22 Mar 2000 14:25:37 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Fwd: MPAA v. 2600 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm glad that www.dvd-copy.com settled. They weren't very sympathetic, anyway. Did 2600 have any insults or pro-piracy comments on their website? Dec 5 is a LONG time away! I think we should get serious with drafting some memo's answering the EFF questions. We have plenty of time and have hashed through most of the things well enough to make a go at it. We just need to figure out a process. Suggestions? The blurb didn't mention if it is a bench trial or a jury trial - anyone know? Also, how do appeals work? Do they happen only after the trial? --- Wendy Seltzer wrote: > jya sent this to Cyberia: > > >Two of the three defendants in the New York MPAA case have > >withdrawn by way of consent judgements, leaving only "2600" > >which succeeds its publisher, Emmanuel Goldstein, as defendant. > > > >Martin Garbus has joined the defense team, and represented > >the defense at a hearing Monday before Judge Kaplan at which > >a trial date of December 5 was set. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 17:36:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07350 for dvd-discuss-outgoing; Wed, 22 Mar 2000 17:36:48 -0500 Received: from nospam.com (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA07291 for ; Wed, 22 Mar 2000 17:35:37 -0500 Date: Wed, 22 Mar 2000 17:35:37 -0500 From: nospam@nospam.com Message-Id: <200003222235.RAA07291@eon.law.harvard.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > but for 1201(b), the trafficking ban, the definition is 1201(b)(2)(B), > > a technological measure ''effectively protects a right of a > copyright owner under this title'' if the measure, in the > ordinary course of its operation, prevents, restricts, or > otherwise limits the exercise of a right of a copyright owner > under this title. This is really funny. Read literally, this says that 1201(b) applies to technological measures which restrict the rights of a copyright owner. The rights of a copyright owner are the exclusive right to publish, sell, perform, etc. 1201(b) allows technological measures to take away the copyright holder's exclusive right to their work. Somehow I don't think that was the intent of congress, but, read literally the definition of ''effectively protects a right of a copyright owner under this title'' is to take away the rights of a copyright holder. This makes 1201(b) either plainly invalid, or at least self-contradictory. I suspect that faced with this dilemma, the MPAA will argue the latter, which means looking at the legislative history to determine the meaning. Which means we get to introduce as evidence all that good stuff from the congressional record. :) From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 18:15:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10447 for dvd-discuss-outgoing; Wed, 22 Mar 2000 18:15:06 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA10444 for ; Wed, 22 Mar 2000 18:15:05 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id TAA27196 for ; Wed, 22 Mar 2000 19:28:34 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA01497; Wed, 22 Mar 2000 19:28:33 -0500 (EST) Date: Wed, 22 Mar 2000 19:28:33 -0500 (EST) Message-Id: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <200003222235.RAA07291@eon.law.harvard.edu> References: <200003222235.RAA07291@eon.law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu nospam@nospam.com writes: > Somehow I don't think that was the intent of congress, but, read literally > the definition of ''effectively protects a right of a copyright owner > under this title'' is to take away the rights of a copyright holder. > > This makes 1201(b) either plainly invalid, or at least self-contradictory. > I suspect that faced with this dilemma, the MPAA will argue the latter, > which means looking at the legislative history to determine the meaning. > Which means we get to introduce as evidence all that good stuff from the > congressional record. :) ... *if* they argue 1201(b), which right now, they aren't; the complaint is under 1201(a)(2), which has the "authority of the copyright owner" language. The peculiar thing about that, though, is that what CSS requires in the ordinary course of its operation is a player key obtained under license from the DVDCCA, which is almost certainly *not* the copyright owner of the content on your DVD. If the MPAA wants to assert that its members, en bloc, have transferred their authority to the DVDCCA, then we have a suspicious-looking tying arrangement, which (as Ian Hay has pointed out) might be subject to challenge under U.S. v. Paramount. But if not, then one might argue that the CSS machinery does not require "the application of information, ... with the authority of the copyright owner, to gain access to the work" (which is the 1201(a)(3)(B) definition), but instead requires the application of information with the authority of a third party (the DVDCCA). The language of the 1201(a)(3)(b) definition is tortured enough that I'm not sure *how* to apply it to the case of a "technological measure" like CSS in which a third party, and not the copyright owner itself, is handing out the keys --- if a lawyer would like to clarify the point, I'd be grateful. But it's not obvious to me that systems like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 18:35:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12596 for dvd-discuss-outgoing; Wed, 22 Mar 2000 18:35:49 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA12593 for ; Wed, 22 Mar 2000 18:35:48 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 22 Mar 2000 16:49:39 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19E6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] FWD from sparky: framing the argument Date: Wed, 22 Mar 2000 16:49:36 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: sparky [mailto:sparky@suba.com] > Sent: Saturday, March 18, 2000 11:54 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] FWD from sparky: framing the argument > > > This is a more developed version of the original short frame > post I made a > little while ago. > > A couple of things: > > I am hoping the advantage of this frame will be that arguers > will be able > more easily to fit arguments and citations into relation with > each other. > Also, it may be easier to see how *contrary* arguments could > arise or be > employed. I don't know if the frame is really pertinent to > how a lawyer > would argue in court. > > Disadvantage: I put this together a week ago, and did not > post it right away > for various reasons.. but even though it has only been a > week, some of the > summarized points may seem insufficient now. In particular, > Ian's argument > in the "circumvention or access" string about implicit > granting of authority > completely changes my understanding of the authority issue, > which I had > thought would be a no-winner, basically. (While I made some > minor changes to > this frame for this post, I have left my original (limited) > understanding of > the authority question as was, simply because it > characterizes what I guess > would be the MPAA's approach to it. If they found a good way > to argue that > approach, Ian's argument might have more of a fight on its hands. Just > thinking worst-case-scenario.) > > While Ian's argument is powerful, I am erring on the side of > caution by > approaching a way of arguing essentially the same approach as > Ian's but > without going into when the authority is granted. The > authority point is > major but *just in case* the MPAA lawyers come up with a devious > counterargument (IANAL so this seems at least possible to > me), the frame > gives the skeleton of a more circuitous way to say that > authority should not > matter (with bought media) because even without it, the access control > shortcircuits fair use. To write the framework for what to do if the authority arguement fails risks falling back on your framework without ever presenting the authority argument. I would suggest that the argument about when authority is granted be added to your framework, with the current framework backing it up as a "what to do if..." plan. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Wed Mar 22 18:51:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA14683 for dvd-discuss-outgoing; Wed, 22 Mar 2000 18:51:51 -0500 Received: from wabakimi.chat.carleton.ca (root@wabakimi.chat.carleton.ca [134.117.1.98]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA14668 for ; Wed, 22 Mar 2000 18:51:50 -0500 Received: from prince (mhoye@prince.chat.carleton.ca [134.117.1.224]) by wabakimi.chat.carleton.ca (8.9.1a/8.9.1) with ESMTP id UAA27533 for ; Wed, 22 Mar 2000 20:05:19 -0500 (EST) Received: from localhost by prince (8.9.3+Sun/Sun-Client) id BAA10933; Thu, 23 Mar 2000 01:05:18 GMT Date: Wed, 22 Mar 2000 20:05:18 -0500 (EST) From: Michael Hoye To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Getting started. In-Reply-To: <20000322222537.5023.qmail@web502.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 22 Mar 2000, Bryan Taylor wrote: > Dec 5 is a LONG time away! I think we should get serious with drafting > some memo's answering the EFF questions. We have plenty of time and > have hashed through most of the things well enough to make a go at it. > We just need to figure out a process. Suggestions? I just signed on, and I'd like to contribute something. I suggest that somebody seriously tell me where to get started. -- Mike Hoye From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 09:30:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA23431 for dvd-discuss-outgoing; Thu, 23 Mar 2000 09:30:33 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA23428 for ; Thu, 23 Mar 2000 09:30:32 -0500 Received: from bugbug (max01-55.suba.com [206.69.121.247]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id IAA20589 for ; Thu, 23 Mar 2000 08:30:59 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] FWD from sparky: framing the argument Date: Thu, 23 Mar 2000 08:30:04 -0600 Message-ID: <000001bf94d4$48262420$f77945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <4.2.2.20000320174022.00c155a0@law.harvard.edu> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I only just read this in my catch-up session. I am a sad specimen. :( It seems to me that it is the concept of right to access around which any good argument will have to revolve. (Excuse if this statement means I'm way behind the pack.) Your understanding of my frame seems right, and I have to take your word on yours for now, though no doubt you are right about that one too. :) Also, Ian's argument revolves around authorization to access. Perhaps the *real* starting point for a consolidated frame should be this question of access. CSS restricts access, DeCSS allows access where the MPAA doesn't want it allowed. The law is paracopyright, which Nimmer likens to entering a house, which is prior to use. Yada yada. Then arguments that access is justified, allowed, an assumed right, okay in general: Subsection 1, Approach A. Subsection 2, Approach B. Til we run out of imagination. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Wendy Seltzer > Sent: Monday, March 20, 2000 7:20 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] FWD from sparky: framing the argument > > > One difference in slant between this and the outline I posted is that you > seem to be pressing for a recognition of a right to access for fair use > purposes within 1201, while I was suggesting that if 1201 does not give > such a right then it is unconstitutional. So you are reading the > cases for > statutory construction, while I was reading them for constitutional > mandates. The choice between the approaches is probably a strategic > decision for which it would help to flesh out both sides. > > This looks like a good thread of argument. > > At 01:53 PM 3/18/00 -0600, sparky@suba.com wrote: > > >FRAME OF ARGUMENT > >[lots o' snip] From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 10:23:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA08191 for dvd-discuss-outgoing; Thu, 23 Mar 2000 10:23:30 -0500 Received: from penguin.filetron.com (qmailr@mail.filetron.com [206.171.92.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA08188 for ; Thu, 23 Mar 2000 10:23:28 -0500 Received: (qmail 28781 invoked from network); 23 Mar 2000 15:20:31 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 23 Mar 2000 15:20:31 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id HAA04117; Thu, 23 Mar 2000 07:24:23 -0800 Date: Thu, 23 Mar 2000 07:24:23 -0800 Message-Id: <200003231524.HAA04117@ns1.filetron.com> Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Technology Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns wrote: >On Wed, 22 Mar 2000, Rares Marian wrote: > >> You're licensing the content not the media. Not that there's anything >> close to that in the function of DeCSS. > >You aren't licensing anything. There is no license agreement involved in >the purchase of DVD. You are bound by copyright, but there are no >extraneous obligations put upon the purchaser of a DVD by the copyright >holder. > >> >The issue that causes this kind of of ownership conflicts, is the fact that >> >digital data can be reproduced perfectly and it is impossible to tell the >> >reproduction from the original. Thats the inherent problem with copy control. >> >If something exists in digital form, it can be copied. >> >> If you have the hardware to do it. That hardware costs $4000. >That's a poor argument. How much did a CD Recordable drive cost 5 years >ago? Now you can pick them up for under $200 and soon you'll be able to >pick up a box of 12 used ones for 50 cents at a Hamfest. Do you believe >that DVD recorders are going to stay up at $4000? Give it two or three >years, and we'll be picking them up for under $200 too. Of course by then >the new DVD replacement will be out with higher capacities and good >encryption and make this whole case a moot point. DVD replacement doesn't change the issue. The strcuture of the market is as follows: We have consumer technology and publisher technology. Examples: PCs, Mainframes; Home printers, Printing presses; DVD-RAM for storage purposes, DVD-Write for commercial purposes. DVD-RAM is designed to make DVD copying impossible. The argument about prices is false. The markets will be split and the hardware will only be available to those who can afford it. I expect new versions of DVD-Write hardware to be even more expensive. And as PCs start to be replaced by appliances, the home producer market will drop significantly. The pressure on the hardware manufacturers to keep prices down will disappear. >For the next decade or so at least, assume that the barriers of processor >speed, storage capacity, and bandwidth really don't exist. If something >is not possible right now because of one of these limitations (or at some >extrodinary cost imposed by the limitation), it will be available >soon. No it won't 85% of the population wants eye-candy. Only a small percent want to produce eye-candy from home. And that perccentage will dwindle in the next few years. >> That's a side issue. That's in the category of the 56-bit export >> limits. It's bad because its absurd to protect weak tech by law. It >> isn't bad because the tech is weak. The intent to protect is >> understandable. > >Actually, somebody posted a good message about why the encryption on DVD >is the way it is and it hasn't anything to do with export >controls. Basically what it comes down to is that low bit encryption is >cheaper to create hardware for, so they went with a minimalist protection >scheme to reduce costs. I was saying the argument about weakness is marginally relevant, the argument about intent to protect is a lot stronger in this case. >---Steve Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 10:47:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10481 for dvd-discuss-outgoing; Thu, 23 Mar 2000 10:47:56 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA10478 for ; Thu, 23 Mar 2000 10:47:56 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id KAA20500 for ; Thu, 23 Mar 2000 10:48:26 -0500 (EST) Message-Id: <4.2.2.20000323104629.00c5ab70@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 23 Mar 2000 10:48:18 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Getting started. Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:05 PM 3/22/00 -0500, mhoye@chat.carleton.ca wrote: >I just signed on, and I'd like to contribute something. > >I suggest that somebody seriously tell me where to get started. Good point. Here's a roadmap: There are three DeCSS cases: -A trade secret claim filed in California state court by the DVD Copy Control Association (DVDCCA) DVD Copy Control Assoc. v. McLaughlin: preliminary injunction issued: -Two complaints under the Digital Millennium Copyright Act (DMCA), filed in New York and Connecticut federal courts by 7 movie studios, members of the MPAA. Universal City Studios, Inc. v. Reimerdes and Universal City Studios, Inc. v. Hughes: preliminary injunction issued in NY (Judge Kaplan): Discussion in this forum has centered on challenging the DMCA claims, specifically the alleged violation of 17 U.S.C. 1201(a)(2): Circumvention of copyright protection systems: The dvd-discuss FAQ-in-progress gives a good overview of where the discussion has been so far, and what questions are answered or still outstanding: Finally, one outline of potential defenses and challenges to section 1201 is at The most effective way to jump in on the DMCA claims would be to read the complaints, Kaplan's order, section 1201 of the DMCA, and the list FAQ, then add your own arguments or challenge the ones we have. These links and other background material are on the Openlaw Resources page Thanks for joining us! --Wendy Wendy Seltzer wendy@seltzer.com Fellow, Berkman Center for Internet & Society Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 14:57:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10713 for dvd-discuss-outgoing; Thu, 23 Mar 2000 14:57:50 -0500 Received: from rjmconsulting.com (ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA10709 for ; Thu, 23 Mar 2000 14:57:47 -0500 Received: (from rmiller@localhost) by rjmconsulting.com (8.9.3/8.9.3) id LAA12965 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 11:57:45 -0800 Date: Thu, 23 Mar 2000 11:57:44 -0800 From: Russell Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Announcement of a second forum Message-ID: <20000323115744.T897@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A little while ago, a few dvd-discuss regulars created a private forum in order to more intensively deal with some of the problems that, at the time, were not getting enough or any attention from the discuss list. This includes the EFF questions, which are being intensively worked on as we speak. This other list also has the function of being a place where lawyers can feel more comfortable speaking, as membership is limited and their words have much less chance of being miscontrued or damaging. This list was not created to supplant or "take over" for dvd-discuss, it was instead created as a complement to it. It was thought that this approach adequately addresses the weaknesses of dvd-discuss, namely its openness (thereby allowing MPAA lurkers to listen in, which some attorneys were understandably not comfortable with), among other things. This list was created with the blessing of Wendy, with the express enjoinder that we not become "canon", and we have no intention of doing so. We still intend on being active on the dvd-discuss list. Much progress has already been made. Some things will filter out from this list to the discuss list, and things said on the discuss list will filter in to the "closed" list for discussion and possible refinement. No work or opinions are in vain. If you have any questions, please ask Wendy, Russ, or Rob. Thanks. Russell Miller Rob Warren -- Russell miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 15:49:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17546 for dvd-discuss-outgoing; Thu, 23 Mar 2000 15:49:34 -0500 Received: from inconnu.isu.edu (root@inconnu.isu.edu [134.50.8.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA17543 for ; Thu, 23 Mar 2000 15:49:33 -0500 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id NAA16581 for ; Thu, 23 Mar 2000 13:50:03 -0700 Date: Thu, 23 Mar 2000 13:50:02 -0700 (MST) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum In-Reply-To: <20000323115744.T897@duskglow.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu TINC--well, then again, maybe there is... On Thu, 23 Mar 2000, Russell Miller wrote: > A little while ago, a few dvd-discuss regulars created a private forum > in order to more intensively deal with some of the problems that, at the > time, were not getting enough or any attention from the discuss list. > This includes the EFF questions, which are being intensively worked on > as we speak. > > This other list also has the function of being a place where lawyers can > feel more comfortable speaking, as membership is limited and their words > have much less chance of being miscontrued or damaging. > > This list was not created to supplant or "take over" for dvd-discuss, it > was instead created as a complement to it. It was thought that this approach > adequately addresses the weaknesses of dvd-discuss, namely its openness > (thereby allowing MPAA lurkers to listen in, which some attorneys were > understandably not comfortable with), among other things. > > This list was created with the blessing of Wendy, with the express enjoinder > that we not become "canon", and we have no intention of doing so. We still > intend on being active on the dvd-discuss list. > > Much progress has already been made. Some things will filter out from this > list to the discuss list, and things said on the discuss list will filter > in to the "closed" list for discussion and possible refinement. No work > or opinions are in vain. > > If you have any questions, please ask Wendy, Russ, or Rob. > > Thanks. > > Russell Miller > Rob Warren > > > -- > Russell miller - rmiller@duskglow.com - russell@know-where.com > ----------------------------------------------------------------------- > The following sites are my own and do not necessarily represent > the views of any of my clients. > > http://www.duskglow.com > http://www.singlegeek.com > http://www.whathaveyoudone.org > I can be immature if I want to, because I'm mature enough to make my own decisions. Who is John Galt? galt@inconnu.isu.edu From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 16:02:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA18688 for dvd-discuss-outgoing; Thu, 23 Mar 2000 16:02:38 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA18631 for ; Thu, 23 Mar 2000 16:02:36 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id PAA30071 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 15:03:06 -0600 Date: Thu, 23 Mar 2000 15:03:06 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323150306.A30018@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000323115744.T897@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000323115744.T897@duskglow.com>; from rmiller@duskglow.com on Thu, Mar 23, 2000 at 11:57:44AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Questions: - How to you plan on keeping dvd-discuss alive if everyone there suddenly feels like second-class citizens, abandoned by the "dvd-discuss regulars"? - How can anyone on dvd-discuss actually contribute without knowledge of what's currently being done and what needs doing? - If dvd-discuss isn't working why not just disband it? - Isn't the level of discussion on dvd-discuss simply going to fall to a Slashdot-like low if all the good people leave? On Thu, Mar 23, 2000 at 11:57:44AM -0800, Russell Miller wrote: > A little while ago, a few dvd-discuss regulars created a private forum > in order to more intensively deal with some of the problems that, at the > time, were not getting enough or any attention from the discuss list. > This includes the EFF questions, which are being intensively worked on > as we speak. > > This other list also has the function of being a place where lawyers can > feel more comfortable speaking, as membership is limited and their words > have much less chance of being miscontrued or damaging. > > This list was not created to supplant or "take over" for dvd-discuss, it > was instead created as a complement to it. It was thought that this approach > adequately addresses the weaknesses of dvd-discuss, namely its openness > (thereby allowing MPAA lurkers to listen in, which some attorneys were > understandably not comfortable with), among other things. > > This list was created with the blessing of Wendy, with the express enjoinder > that we not become "canon", and we have no intention of doing so. We still > intend on being active on the dvd-discuss list. > > Much progress has already been made. Some things will filter out from this > list to the discuss list, and things said on the discuss list will filter > in to the "closed" list for discussion and possible refinement. No work > or opinions are in vain. > > If you have any questions, please ask Wendy, Russ, or Rob. > > Thanks. > > Russell Miller > Rob Warren > > > -- > Russell miller - rmiller@duskglow.com - russell@know-where.com > ----------------------------------------------------------------------- > The following sites are my own and do not necessarily represent > the views of any of my clients. > > http://www.duskglow.com > http://www.singlegeek.com > http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 16:20:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20429 for dvd-discuss-outgoing; Thu, 23 Mar 2000 16:20:15 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA20426 for ; Thu, 23 Mar 2000 16:20:14 -0500 Received: (qmail 6219 invoked by uid 502); 23 Mar 2000 21:22:37 -0000 Date: Thu, 23 Mar 2000 16:22:37 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323162237.B22416@linuxpower.org> References: <20000323115744.T897@duskglow.com> <20000323150306.A30018@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000323150306.A30018@thud.reric.net>; from Eric Seppanen on Thu, Mar 23, 2000 at 03:03:06PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 23, 2000 at 03:03:06PM -0600, Eric Seppanen wrote: > Questions: > > - How to you plan on keeping dvd-discuss alive if everyone there suddenly > feels like second-class citizens, abandoned by the "dvd-discuss > regulars"? Everyone is free to take up discussions in private, or to start their own lists. This particular list wasn't created by Wendy or by OpenLaw, but by a few regulars who were already doing most of their work in offline email due to the noise on dvd-discuss. There's no reason to feel like second-class citizens. This secondary list is in no way officially endorsed as an OpenLaw list, and in no way reflects on the intentions of Wendy Seltzer or the Berkman Center. This was a call made privately between private individuals. > - How can anyone on dvd-discuss actually contribute without > knowledge of what's currently being done and what needs doing? This is a good question, and at the heart of the entire issue. The fact is, there hasn't been a whole lot of interest expressed here for actually doing work until very recently. This was only one reason - and not the primary one - that a closed list was formed. At this stage, about half the EFF questions have been thoroughly answered. We've been trying to work out the best way to put the information out there without either starting a flamewar, disrupting the process or releasing information that the attorneys involved might not want generally released. We are completely open to ideas, here. > - If dvd-discuss isn't working why not just disband it? Because it *is* working. An open list is an excellent place to throw out ideas and to beat them senseless. "dvd-discuss" serves a vital purpose in this entire process, as does a closed list. To simply say that since dvd-discuss doesn't serve *all* purposes, that it serves *none* - that's simply untrue. Both purposes are vital to making this work. > - Isn't the level of discussion on dvd-discuss simply going to fall to a > Slashdot-like low if all the good people leave? Who's leaving? The very first concern we all had was that the "good people" would abandon dvd-discuss altogether. This was why most of us agreed to continue posting to dvd-discuss - many, in fact, contributed even *more* vigorously in dvd-discuss once they knew that the actual work was still being done. Eric, please understand this. The "good people" were already leaving. This second list didn't take them away from OpenLaw; it convinced them to stay in the process. The list was put together for the sole reason that the only alternative would *be* a degradation to Slashdot levels. Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 16:30:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22282 for dvd-discuss-outgoing; Thu, 23 Mar 2000 16:30:05 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA22279 for ; Thu, 23 Mar 2000 16:30:03 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id WAA04636 for ; Thu, 23 Mar 2000 22:30:33 +0100 (CET) From: "tser" To: Subject: RE: [dvd-discuss] Announcement of a second forum Date: Thu, 23 Mar 2000 22:16:08 +0100 Message-ID: <000001bf950d$02467a70$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <20000323115744.T897@duskglow.com> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >This other list also has the function of being a place where lawyers can >feel more comfortable speaking, as membership is limited and their words >have much less chance of being miscontrued or damaging. EchoLon(don)2 is already listening in ;o) I'll hope for you shake that you understand that no-mather what list you create, it will be infiltrated by both gouverment and MPAA. *fades in mysteryland* - Tser. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 16:38:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22799 for dvd-discuss-outgoing; Thu, 23 Mar 2000 16:38:58 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA22796 for ; Thu, 23 Mar 2000 16:38:57 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id QAA06485 for ; Thu, 23 Mar 2000 16:39:28 -0500 (EST) Message-Id: <4.2.2.20000323161613.00b99820@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 23 Mar 2000 16:39:19 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Announcement of a second forum In-Reply-To: <20000323150306.A30018@thud.reric.net> References: <20000323115744.T897@duskglow.com> <20000323115744.T897@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have no intention of abandoning dvd-discuss. My so-called blessing on the creation of a second list was simply an acknowledgment that multiple forums might be useful (and that I could not in any event stop people from conversing by private email if they chose). It is my impression that the creators of the other list intend to remain active participants on dvd-discuss, as I have asked them at every opportunity. If some people feel that they can make a better contribution to the open process by first discussing a question among themselves, why not give that a try? It's difficult to manage all of this in realtime. We're working to develop a framework for open argument at the same time we're working to develop the argument itself. _Anyone_ with suggestions for coordination of efforts, refinement of arguments, or logistics is invited to share them with me or with this list. It may take me a while to read and respond to everything, but I am reading it and it is making a difference. Thanks! --Wendy At 03:03 PM 3/23/00 -0600, eds@reric.net wrote: >Questions: > >- How to you plan on keeping dvd-discuss alive if everyone there suddenly > feels like second-class citizens, abandoned by the "dvd-discuss > regulars"? >- How can anyone on dvd-discuss actually contribute without > knowledge of what's currently being done and what needs doing? >- If dvd-discuss isn't working why not just disband it? >- Isn't the level of discussion on dvd-discuss simply going to fall to a > Slashdot-like low if all the good people leave? > > >On Thu, Mar 23, 2000 at 11:57:44AM -0800, Russell Miller wrote: > > A little while ago, a few dvd-discuss regulars created a private forum > > in order to more intensively deal with some of the problems that, at the > > time, were not getting enough or any attention from the discuss list. > > This includes the EFF questions, which are being intensively worked on > > as we speak. > > > > This other list also has the function of being a place where lawyers can > > feel more comfortable speaking, as membership is limited and their words > > have much less chance of being miscontrued or damaging. > > > > This list was not created to supplant or "take over" for dvd-discuss, it > > was instead created as a complement to it. It was thought that this > approach > > adequately addresses the weaknesses of dvd-discuss, namely its openness > > (thereby allowing MPAA lurkers to listen in, which some attorneys were > > understandably not comfortable with), among other things. > > > > This list was created with the blessing of Wendy, with the express > enjoinder > > that we not become "canon", and we have no intention of doing so. We still > > intend on being active on the dvd-discuss list. > > > > Much progress has already been made. Some things will filter out from this > > list to the discuss list, and things said on the discuss list will filter > > in to the "closed" list for discussion and possible refinement. No work > > or opinions are in vain. > > > > If you have any questions, please ask Wendy, Russ, or Rob. > > > > Thanks. > > > > Russell Miller > > Rob Warren > > > > > > -- > > Russell miller - rmiller@duskglow.com - russell@know-where.com > > ----------------------------------------------------------------------- > > The following sites are my own and do not necessarily represent > > the views of any of my clients. > > > > http://www.duskglow.com > > http://www.singlegeek.com > > http://www.whathaveyoudone.org wendy@seltzer.com Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 17:02:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25756 for dvd-discuss-outgoing; Thu, 23 Mar 2000 17:02:49 -0500 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA25753 for ; Thu, 23 Mar 2000 17:02:47 -0500 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id XAA17037 for ; Thu, 23 Mar 2000 23:03:17 +0100 (CET) From: "tser" To: Subject: RE: [dvd-discuss] Announcement of a second forum Date: Thu, 23 Mar 2000 22:48:53 +0100 Message-ID: <000101bf9511$957dde60$e58e97c2@tser> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <20000323162237.B22416@linuxpower.org> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu How about posting a WEekly briefing of what you did in those paralel list? And talking about thing's to-do, are there any things to-do, technicallaw spoken ? Something we can outragely discuss, do research on, have all our different opinions on ? You know, those things some people hardly understand, and wherefor you need dummy questions to get things totaly known. Something like "Actions Last week" - Does the key size of DVD mathers ? "results this week" we learned that it doesn't mather, how small the key size was, because it wasn't the point. "Todo next week" .... Then you'll See, those people, just babbling around, can also do rare things. Give us something to do. - Tser. From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 17:13:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27905 for dvd-discuss-outgoing; Thu, 23 Mar 2000 17:13:30 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA27884 for ; Thu, 23 Mar 2000 17:13:28 -0500 Received: (qmail 6498 invoked by uid 502); 23 Mar 2000 22:15:53 -0000 Date: Thu, 23 Mar 2000 17:15:53 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323171553.D22416@linuxpower.org> References: <20000323115744.T897@duskglow.com> <20000323115744.T897@duskglow.com> <20000323150306.A30018@thud.reric.net> <4.2.2.20000323161613.00b99820@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <4.2.2.20000323161613.00b99820@law.harvard.edu>; from Wendy Seltzer on Thu, Mar 23, 2000 at 04:39:19PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 23, 2000 at 04:39:19PM -0500, Wendy Seltzer wrote: > I have no intention of abandoning dvd-discuss. > > My so-called blessing on the creation of a second list was simply an > acknowledgment that multiple forums might be useful (and that I could not > in any event stop people from conversing by private email if they > chose). I just wanted to take this moment and clarify this, in case there is any question. In using the term "blessing", we mean that the second list was not created against objections from Wendy. This is not meant to mean that the list is in any way under her authority or authorization. It is purely a private list organized by private individuals, on a private system. Wendy is in no way responsible for the creation of the second list. Those of us who were directly involved addressed all of these concerns offline before moving forward. We all explicitly agreed that this was a private endeavor, run by it's members, and should in no way present itself as an "official" Openlaw list. We continue to stand behind OpenLaw and dvd-discuss one hundred percent. > It is my impression that the creators of the other list intend to > remain active participants on dvd-discuss, as I have asked them at every > opportunity. She has, and we absolutely intend to. Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 17:15:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28419 for dvd-discuss-outgoing; Thu, 23 Mar 2000 17:15:34 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28388 for ; Thu, 23 Mar 2000 17:15:32 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id QAA23890 for ; Thu, 23 Mar 2000 16:16:05 -0600 Date: Thu, 23 Mar 2000 16:16:05 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Announcement of a second forum In-Reply-To: <000101bf9511$957dde60$e58e97c2@tser> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 23 Mar 2000, tser wrote: > How about posting a WEekly briefing of what you did in those paralel list? > And talking about thing's to-do, are there any things to-do, technicallaw > spoken ? This is a really great idea. It would be nice to get feedback from what's going on with the closed list. If a particular line of logic has been decided to be useless in the defense, it would be helpful to know that so we can limit discussion of it. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 17:25:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30459 for dvd-discuss-outgoing; Thu, 23 Mar 2000 17:25:36 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA30456 for ; Thu, 23 Mar 2000 17:25:34 -0500 Received: (qmail 6554 invoked by uid 502); 23 Mar 2000 22:27:59 -0000 Date: Thu, 23 Mar 2000 17:27:59 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323172759.E22416@linuxpower.org> References: <20000323162237.B22416@linuxpower.org> <000101bf9511$957dde60$e58e97c2@tser> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000101bf9511$957dde60$e58e97c2@tser>; from tser on Thu, Mar 23, 2000 at 10:48:53PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 23, 2000 at 10:48:53PM +0100, tser wrote: > How about posting a WEekly briefing of what you did in those paralel list? > And talking about thing's to-do, are there any things to-do, technicallaw > spoken ? This is being discussed as we speak. The biggest reason we founded the second list - "dvd-closed" - was because a number of attorneys did not want to post publicly to a global audience and have their words misconstrued. There are a number of valuable individuals who will play a very large part in this defense who feel the same way. In a private list, these individuals have been more comfortable in speaking their minds and we've had the good fortune to profit from that communication. Think of "dvd-closed" as basically a lawyer interface. For this same reason, the content of the list must remain private until such point that information can be released properly. Don't worry; the big topic right now is how to return as much information as possible to dvd-discuss without doing damage. > Something we can outragely discuss, do research on, have all our different > opinions on ? > You know, those things some people hardly understand, and wherefor you need > dummy questions to get things totaly known. This is something else that is being discussed. We absolutely don't want this to be a "dvd-closed bestows upon dvd-discuss the Great Wisdom" kind of thing. Uh-huh; no way. The much more likely possibility is that most arguments will be brought up and haggled over in dvd-discuss, while dvd-closed tries to sharpen them into lethal weapons, away from the eyes of general public lurkers (who may or may not be MPAA attorneys, by the way). This has already been done, actually, in at least one case. We're open to ideas; dvd-closed exists to carry functions that dvd-discuss by it's very nature can't perform. This will leave dvd-discuss free to do what it does best - be a big group of eyeballs. Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.iag.net/~aleris/dvdfaq.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 18:02:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04106 for dvd-discuss-outgoing; Thu, 23 Mar 2000 18:02:16 -0500 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04103 for ; Thu, 23 Mar 2000 18:02:15 -0500 Received: from 209-122-203-43.s297.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.43]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12YGcm-0001wT-00 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 18:02:46 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> References: <200003222235.RAA07291@eon.law.harvard.edu> <200003230028.TAA01497@soggy-fibers.ai.mit.edu> Date: Thu, 23 Mar 2000 18:01:59 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Robert S Thau wries, in part, > >If the MPAA wants to assert that its members, en bloc, have >transferred their authority to the DVDCCA, then we have a >suspicious-looking tying arrangement, which (as Ian Hay has pointed >out) might be subject to challenge under U.S. v. Paramount. > >But if not, then one might argue that the CSS machinery does not >require "the application of information, ... with the authority of the >copyright owner, to gain access to the work" (which is the >1201(a)(3)(B) definition), but instead requires the application of >information with the authority of a third party (the DVDCCA). Musicians have long used rights management agencies to sell or license public performance rights. BMI, and ASCAAP have come under investigation for numerous practices, including so-called blanket licences, which enable the replay of a RMA's portfolio, for fixed annual fees. Is there a substantial difference between a traditional RMA and the DVDCCA? >The language of the 1201(a)(3)(b) definition is tortured enough that >I'm not sure *how* to apply it to the case of a "technological >measure" like CSS in which a third party, and not the copyright owner >itself, is handing out the keys --- if a lawyer would like to clarify >the point, I'd be grateful. But it's not obvious to me that systems >like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... Maybe there's some caselaw available out there concerning the insurance industry. What constitutes an effective lock-- or an effective sprinkler system? Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 18:16:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05643 for dvd-discuss-outgoing; Thu, 23 Mar 2000 18:16:10 -0500 Received: from nt2linux.com (570@c69209-c.pinol1.sfba.home.com [24.5.25.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA05639 for ; Thu, 23 Mar 2000 18:16:09 -0500 Received: (qmail 27948 invoked by uid 500); 23 Mar 2000 23:21:20 -0000 Received: from localhost (sendmail-bs@127.0.0.1) by localhost with SMTP; 23 Mar 2000 23:21:20 -0000 Date: Thu, 23 Mar 2000 15:21:20 -0800 (PST) From: Kent Nguyen X-Sender: kent@C69209-C.pinol1.sfba.home.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] My commercials + DVD movie In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A DVD movie has "attached" commercials. What is my power to delete those "attached" commercials and replace it with my own? My question: Am I not suppose to do this? I've seen movies from blockbuster or from other rental place that they've attached commercials of their own before the actually movie. Kent From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 18:17:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05728 for dvd-discuss-outgoing; Thu, 23 Mar 2000 18:17:03 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA05725 for ; Thu, 23 Mar 2000 18:17:03 -0500 Received: (qmail 6829 invoked by uid 502); 23 Mar 2000 23:19:28 -0000 Date: Thu, 23 Mar 2000 18:19:28 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] New Home for the FAQ Message-ID: <20000323181928.G22416@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Team - We've completed work on the HTML version of the FAQ, and it's been moved to a new site. The new FAQ URL is: www.cssfaq.org (Thanks to Seth Schoen for providing the domain and resources.) Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.cssfaq.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 18:22:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA06301 for dvd-discuss-outgoing; Thu, 23 Mar 2000 18:22:49 -0500 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA06298 for ; Thu, 23 Mar 2000 18:22:48 -0500 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id RAA27047 for ; Thu, 23 Mar 2000 17:23:21 -0600 Date: Thu, 23 Mar 2000 17:23:21 -0600 (CST) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My commercials + DVD movie In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > A DVD movie has "attached" commercials. What is my power to delete those > "attached" commercials and replace it with my own? In theory yes, but you couldn't distribute it because that would violate copyright law (and not just the DMCA). I say in theory because in order to do this you'd have to pull the content of the DVD off of the disc and this whole case is about whether you're allowed to do that or not. > My question: > Am I not suppose to do this? I've seen movies from blockbuster or from > other rental place that they've attached commercials of their own before > the actually movie. I'm sure (that is, I can't see how else they do this) that blockbuster has an agreement with the movie studios that permits them to do this. I'm sure they pay a small fortune for it too :) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 18:39:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07665 for dvd-discuss-outgoing; Thu, 23 Mar 2000 18:39:34 -0500 Received: from mercury.Clearway (host100.56jfk.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA07662 for ; Thu, 23 Mar 2000 18:39:33 -0500 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Thu, 23 Mar 2000 18:40:50 -0500 Message-ID: <611C0CE12596D311B466009027D5E7591E4BD1@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] two questions Date: Thu, 23 Mar 2000 18:40:48 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Greetings. I am a software engineer who has worked on copy protection systems in consumer software. Part of my job involved studying how software is protected (or not protected) so I could be a reasonable advisor to management on these issues. There are two questions that have made me pace the floor ever since I heard of the DeCSS case. I am framing them as "dumb questions." * Is CSS encryption? When does a sophisticated data format turn into encryption? Even many well known data formats are so complicated they require significant expertise to use. * Does 1201 3 (b) prohibit competing products from accessing copyrighted works if both products offer the same level of protection for copyright owners? From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 19:10:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10734 for dvd-discuss-outgoing; Thu, 23 Mar 2000 19:10:23 -0500 Received: from samsara.law.cwru.edu (samsara.LAW.CWRU.Edu [129.22.186.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10731 for ; Thu, 23 Mar 2000 19:10:23 -0500 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.9.3/8.9.3) with ESMTP id TAA02538; Thu, 23 Mar 2000 19:10:42 -0500 Message-Id: <200003240010.TAA02538@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-reply-to: Your message of "Thu, 23 Mar 2000 18:01:59 EST." Date: Thu, 23 Mar 2000 19:10:12 -0500 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin writes: : >The language of the 1201(a)(3)(b) definition is tortured enough that : >I'm not sure *how* to apply it to the case of a "technological : >measure" like CSS in which a third party, and not the copyright owner : >itself, is handing out the keys --- if a lawyer would like to clarify : >the point, I'd be grateful. But it's not obvious to me that systems : >like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... : : Maybe there's some caselaw available out there concerning the : insurance industry. What constitutes an effective lock-- or an : effective sprinkler system? But if there were such caselaw it would relate to the normal meaning of ``effective'' and would have no bearing on the meaning of ``effective'' as that term is variously and perversely define in Section 1201. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 19:20:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11639 for dvd-discuss-outgoing; Thu, 23 Mar 2000 19:20:08 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA11636 for ; Thu, 23 Mar 2000 19:20:07 -0500 Received: (qmail 7184 invoked by uid 502); 24 Mar 2000 00:22:33 -0000 Date: Thu, 23 Mar 2000 19:22:33 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Suggestion Message-ID: <20000323192233.K22416@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Team - Since making the announcement of the closed list this afternoon, I've fielded several questions offline that amount to: "I'm not a lawyer; I don't have the background to deal with the legal issues; What can I do to help here?" I'd like to offer a suggestion. We're getting questions from non-techies, particularly in the legal world and the press, regarding open-source methodology. Now that we've got a decent FAQ that covers the very basics of some of the legal issues, we need to start putting together an Open Source for Lawyers FAQ. Providing this sort of information would go a *long* way to making sure that press articles are accurate and would greatly help bring the lawyers up to speed on *our* side of the world. I'm starting work on putting this sort of FAQ together. Techies: your help counts for a lot here. Speak up, and let's get this work underway. Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.cssfaq.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 20:42:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19936 for dvd-discuss-outgoing; Thu, 23 Mar 2000 20:42:16 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA19933 for ; Thu, 23 Mar 2000 20:42:14 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id TAA30931 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 19:42:45 -0600 Date: Thu, 23 Mar 2000 19:42:45 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323194245.A30832@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000323115744.T897@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000323115744.T897@duskglow.com>; from rmiller@duskglow.com on Thu, Mar 23, 2000 at 11:57:44AM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu More ramblings about open/closed list: - Should some of the folks emerging as "leaders" be formally named leaders? They could perhaps vote on list policy and any other issues that cause disagreement. They could also provide the final word as to when a particular topic has been discussed to death. - Should some of the cross-list communication be formalized? Such as naming several persons "list liasons" who can carry issues from the open list to the closed list? - In the same vein, could there be a formalized method to throw a question to the other list? Let's say somone down here has a hard legal question that can only be answered on the other list... could there be a subject tag [liason] or something that says "I propose that someone from the closed list carry this question over so the experts can answer it." Of course, stupid, repetitive, off-topic questions could still be ignored. - If off-topic, uninformed traffic here were to increase to an unbearable level, how will that be handled? I think I'd like to hear a public statement from the folks running this list. My personal opinion is that the worst offenders should be given a list of books to read and politely shown the door. Can a balance be struck between elitism and chaos? Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 20:57:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21999 for dvd-discuss-outgoing; Thu, 23 Mar 2000 20:57:07 -0500 Received: from dial191.roadrunner.com (dial191.cybermesa.com [209.12.75.191]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA21996 for ; Thu, 23 Mar 2000 20:57:05 -0500 Received: (from paul@localhost) by dial191.roadrunner.com (8.8.7/8.8.7) id TAA02617 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 19:01:08 -0700 Date: Thu, 23 Mar 2000 19:01:07 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323190107.A2482@localhost> References: <20000323115744.T897@duskglow.com> <20000323194245.A30832@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000323194245.A30832@thud.reric.net>; from eds@reric.net on Thu, Mar 23, 2000 at 07:42:45PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 23, 2000 at 07:42:45PM -0600, Eric Seppanen wrote: > More ramblings about open/closed list: > > - Should some of the folks emerging as "leaders" be formally named > leaders? They could perhaps vote on list policy and any other issues that > cause disagreement. They could also provide the final word as to when a > particular topic has been discussed to death. No. Authority of expertise is much better than authority of power in this situation. Authority of power means people are less likely to challenge bogus argument by the "leaders." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 22:00:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28895 for dvd-discuss-outgoing; Thu, 23 Mar 2000 22:00:48 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA28892 for ; Thu, 23 Mar 2000 22:00:46 -0500 Received: (qmail 8156 invoked by uid 502); 24 Mar 2000 03:03:09 -0000 Date: Thu, 23 Mar 2000 22:03:09 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] HTML FAQ updates Message-ID: <20000323220309.B22416@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Gang - I've removed the FAQ locally from my web page and moved it completely now to it's new home at www.cssfaq.org. For those of you who have linked to it (including you, Wendy :)), the new direct URL for the FAQ is: www.cssfaq.org/dvd-discuss-faq.html Rob Warren email: greslin@linuxpower.org homepage: www.iag.net/~aleris GXAnim: www.iag.net/~aleris/gxanim.html The Canvas Project: canvas.linuxpower.org OpenLaw DVD FAQ: www.cssfaq.org From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 22:28:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA01437 for dvd-discuss-outgoing; Thu, 23 Mar 2000 22:28:42 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA01434 for ; Thu, 23 Mar 2000 22:28:42 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA25879 for ; Thu, 23 Mar 2000 22:29:14 -0500 (EST) Message-Id: <4.2.2.20000323205605.00c8adf0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 23 Mar 2000 22:29:13 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Announcement of a second forum In-Reply-To: <20000323194245.A30832@thud.reric.net> References: <20000323115744.T897@duskglow.com> <20000323115744.T897@duskglow.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:42 PM 3/23/00 -0600, eds@reric.net wrote: >More ramblings about open/closed list: > >- Should some of the folks emerging as "leaders" be formally named >leaders? They could perhaps vote on list policy and any other issues that >cause disagreement. They could also provide the final word as to when a >particular topic has been discussed to death. I hear Paul's concerns, but this sounds appealing to me as a way to distribute management. Any thoughts on how the right group might be formed? >- Should some of the cross-list communication be formalized? Such as >naming several persons "list liasons" who can carry issues from the open >list to the closed list? If everyone is still participating in dvd-discuss, I'm not sure these would be necessary. OTOH, it sounds like a useful role as insurance that communication lines stay open. >- In the same vein, could there be a formalized method to throw a question >to the other list? Let's say somone down here has a hard legal question >that can only be answered on the other list... could there be a subject >tag [liason] or something that says "I propose that someone from the >closed list carry this question over so the experts can answer it." Of >course, stupid, repetitive, off-topic questions could still be ignored. A method for tagging questions as needing in-depth discussion sounds useful, along with a corresponding way to mark threads as unproductive. One problem is that many of these aren't questions that experts can answer, but matters of interpretation and argument, so that without bringing them before a judge, it's hard to give a definitive answer to many of the questions. However, I can see that it would be useful to get informed speculation about how fruitful an argument was _likely_ to be. >- If off-topic, uninformed traffic here were to increase to an unbearable >level, how will that be handled? I think I'd like to hear a public >statement from the folks running this list. My personal opinion is that >the worst offenders should be given a list of books to read and politely >shown the door. Can a balance be struck between elitism and chaos? I added the roadmap I posted earlier today to the list's .info file, suggesting that people joining read the complaints, 1201, and the FAQ, for a start. While there may be other areas of discussion relating to DeCSS, there are other places for those discussions. This list is primarily for discussion of legal argument. Those who veer too far off topic will get offlist reminders. Maybe we need other guidelines, such as number of posts in a day. --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 22:56:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05755 for dvd-discuss-outgoing; Thu, 23 Mar 2000 22:56:27 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05739 for ; Thu, 23 Mar 2000 22:56:25 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id WAA03806 for ; Thu, 23 Mar 2000 22:56:57 -0500 (EST) Message-Id: <4.2.2.20000323180759.00c65710@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 23 Mar 2000 22:56:56 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <200003230028.TAA01497@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 06:01 PM 3/23/00 -0500, jerwin@gmu.edu wrote: >>Robert S Thau wries, in part, >> >>If the MPAA wants to assert that its members, en bloc, have >>transferred their authority to the DVDCCA, then we have a >>suspicious-looking tying arrangement, which (as Ian Hay has pointed >>out) might be subject to challenge under U.S. v. Paramount. I think there's a strong argument here that bears much more looking into. Some interesting info on the DVD player market in a couple of Antitrust Business Review Letters on the manufacturers' patent pools. (Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and Victor in one; Philips, Sony, and Pioneer in another). Not directly on point, but interesting nonetheless, and a reminder that there are plenty of antitrust concerns here. and >>But if not, then one might argue that the CSS machinery does not >>require "the application of information, ... with the authority of the >>copyright owner, to gain access to the work" (which is the >>1201(a)(3)(B) definition), but instead requires the application of >>information with the authority of a third party (the DVDCCA). > >Musicians have long used rights management agencies to sell or license >public performance rights. BMI, and ASCAAP have come under >investigation for numerous practices, including so-called blanket >licences, which enable the replay of a RMA's portfolio, for fixed annual >fees. Is there a substantial difference between a traditional RMA and the >DVDCCA? It would be interesting to look at all of the safeguards put into place for music licensing. Musical scores are subject to a compulsory license in section 115, which has a specific reference to antitrust concerns and negotiation proceedings. I don't know the mechanics there -- but it could be grounds for an argument that the DVDCCA doesn't have the same antitrust exemption. >>The language of the 1201(a)(3)(b) definition is tortured enough that >>I'm not sure *how* to apply it to the case of a "technological >>measure" like CSS in which a third party, and not the copyright owner >>itself, is handing out the keys --- if a lawyer would like to clarify >>the point, I'd be grateful. But it's not obvious to me that systems >>like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... Is your question whether the authorization mechanism is effective, not just the technological measure? That if we can say there's never an "authority of the copyright owner," then the "ordinary course of operation" doesn't require that authority and hence there's nothing to circumvent? Hmmm. (for reference) 1201(a)(3)(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." --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 23:21:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07684 for dvd-discuss-outgoing; Thu, 23 Mar 2000 23:21:30 -0500 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07681 for ; Thu, 23 Mar 2000 23:21:28 -0500 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id WAA31323 for dvd-discuss@eon.law.harvard.edu; Thu, 23 Mar 2000 22:22:00 -0600 Date: Thu, 23 Mar 2000 22:22:00 -0600 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Announcement of a second forum Message-ID: <20000323222200.A31289@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000323115744.T897@duskglow.com> <20000323194245.A30832@thud.reric.net> <20000323190107.A2482@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000323190107.A2482@localhost>; from fenimore@roadrunner.com on Thu, Mar 23, 2000 at 07:01:07PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Mar 23, 2000 at 07:01:07PM -0700, Paul Fenimore wrote: > On Thu, Mar 23, 2000 at 07:42:45PM -0600, Eric Seppanen wrote: > > More ramblings about open/closed list: > > > > - Should some of the folks emerging as "leaders" be formally named > > leaders? They could perhaps vote on list policy and any other issues that > > cause disagreement. They could also provide the final word as to when a > > particular topic has been discussed to death. > > No. Authority of expertise is much better than authority of power in > this situation. Authority of power means people are less likely to > challenge bogus argument by the "leaders." I agree, it is much better. And I don't mean to suggest something so powerful as to quelch all arguments against them. Maybe a name recognizably weak? Honorary pirate captain, or something? (Arr, mateys :) The cost of not having a leader in this case is that whenever a real decision needs to be made, there's nobody with recognized authority to make it (except maybe Wendy since it's her list). Otherwise you're going to get second-guessed left and right. Since decisions are already being made (i.e. form a private list) why not make the decision-makers known? Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Mar 23 23:39:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA08983 for dvd-discuss-outgoing; Thu, 23 Mar 2000 23:39:51 -0500 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA08980 for ; Thu, 23 Mar 2000 23:39:50 -0500 Received: from 25915 (185.10.252.64.snet.net [64.252.10.185]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id XAA17426 for ; Thu, 23 Mar 2000 23:40:22 -0500 (EST) Message-ID: <001f01bf954a$df3d0560$d559fea9@25915> From: "Ernest Miller" To: References: <20000323115744.T897@duskglow.com> <20000323194245.A30832@thud.reric.net> <20000323190107.A2482@localhost> <20000323222200.A31289@thud.reric.net> Subject: Re: [dvd-discuss] Announcement of a second forum Date: Thu, 23 Mar 2000 23:38:59 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ----- Original Message ----- From: Eric Seppanen To: Sent: Thursday, March 23, 2000 11:22 PM Subject: Re: [dvd-discuss] Announcement of a second forum > I agree, it is much better. And I don't mean to suggest something so > powerful as to quelch all arguments against them. Maybe a name > recognizably weak? Honorary pirate captain, or something? (Arr, mateys :) > > The cost of not having a leader in this case is that whenever a real > decision needs to be made, there's nobody with recognized authority > to make it (except maybe Wendy since it's her list). Otherwise you're > going to get second-guessed left and right. Since decisions are already > being made (i.e. form a private list) why not make the decision-makers > known? Actually, many of the decisions will be made by the lawyers on the case. We should follow what they are doing. If they choose to make certain arguments in pre-filing letters, or motions, briefs, etc., we should follow their lead. That doesn't mean we shouldn't continue to offer up new arguments or try to find the weaknesses in our side's case, but many of the decisions will be made by the actual lawyers. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 00:01:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11064 for dvd-discuss-outgoing; Fri, 24 Mar 2000 00:01:54 -0500 Received: from suba01.suba.com (suba01.suba.com [198.87.202.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11061 for ; Fri, 24 Mar 2000 00:01:53 -0500 Received: from bugbug (max01-51.suba.com [206.69.121.243]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA25692 for ; Thu, 23 Mar 2000 23:02:14 -0600 (CST) From: "sparky" To: Subject: RE: [dvd-discuss] Announcement of a second forum Date: Thu, 23 Mar 2000 23:01:23 -0600 Message-ID: <000701bf954e$0026e540$e47945ce@bugbug.WinNATDomain> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 In-Reply-To: <20000323194245.A30832@thud.reric.net> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric wrote: > > More ramblings about open/closed list: > > - If off-topic, uninformed traffic here were to increase to an unbearable > level, how will that be handled? I think I'd like to hear a public > statement from the folks running this list. My personal opinion is that > the worst offenders should be given a list of books to read and politely > shown the door. Can a balance be struck between elitism and chaos? > > Eric > As far as this question goes, I have felt this way at times, but I think it is better to let a person stay and filter if it comes to that. Or ignore a pestersome poster, which is hard to do, but still better than outright banning. sparky From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 00:29:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13579 for dvd-discuss-outgoing; Fri, 24 Mar 2000 00:29:27 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13576 for ; Fri, 24 Mar 2000 00:29:27 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id AAA23749 for ; Fri, 24 Mar 2000 00:29:59 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA08762; Fri, 24 Mar 2000 00:29:58 -0500 (EST) Date: Fri, 24 Mar 2000 00:29:58 -0500 (EST) Message-Id: <200003240529.AAA08762@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <4.2.2.20000323180759.00c65710@law.harvard.edu> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > >>The language of the 1201(a)(3)(b) definition is tortured enough that > >>I'm not sure *how* to apply it to the case of a "technological > >>measure" like CSS in which a third party, and not the copyright owner > >>itself, is handing out the keys --- if a lawyer would like to clarify > >>the point, I'd be grateful. But it's not obvious to me that systems > >>like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... > > Is your question whether the authorization mechanism is effective, not just > the technological measure? That if we can say there's never an "authority > of the copyright owner," then the "ordinary course of operation" doesn't > require that authority and hence there's nothing to circumvent? Hmmm. I think so, but let me try and rephrase it to be sure... The question is whether a "technological measure" that takes no notice of the "authority of the copyright owner" (but only the authority of third parties like the DVDCCA) can be considered "effective" under 1201(a)(3)(B). (Remember that all a DVD player needs "in the ordinary course of its operation" is a player key obtained from the DVDCCA; after that, access to the title key and the content itself is automatic). > 1201(a)(3)(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." rst From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 00:29:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13602 for dvd-discuss-outgoing; Fri, 24 Mar 2000 00:29:33 -0500 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13599 for ; Fri, 24 Mar 2000 00:29:32 -0500 Received: from 207-172-49-47.s47.tnt7.lnhva.md.dialup.rcn.com ([207.172.49.47]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 12YMf6-0007ZD-00 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 00:29:33 -0500 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <4.2.2.20000323180759.00c65710@law.harvard.edu> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <4.2.2.20000323180759.00c65710@law.harvard.edu> Date: Fri, 24 Mar 2000 00:27:32 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id AAA13600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >At 06:01 PM 3/23/00 -0500, jerwin@gmu.edu wrote: >>>Robert S Thau wries, in part, >>> >>>If the MPAA wants to assert that its members, en bloc, have >>>transferred their authority to the DVDCCA, then we have a >>>suspicious-looking tying arrangement, which (as Ian Hay has pointed >>>out) might be subject to challenge under U.S. v. Paramount. > >I think there's a strong argument here that bears much more looking into. >Some interesting info on the DVD player market in a couple of >Antitrust Business Review Letters on the manufacturers' patent >pools. (Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and >Victor in one; Philips, Sony, and Pioneer in another). Not directly >on point, but interesting nonetheless, and a reminder that there are >plenty of antitrust concerns here. > and > > >>>But if not, then one might argue that the CSS machinery does not >>>require "the application of information, ... with the authority of the >>>copyright owner, to gain access to the work" (which is the >>>1201(a)(3)(B) definition), but instead requires the application of >>>information with the authority of a third party (the DVDCCA). >> >>Musicians have long used rights management agencies to sell or >>license public performance rights. BMI, and ASCAAP have come under >>investigation for numerous practices, including so-called blanket >>licences, which enable the replay of a RMA's portfolio, for fixed >>annual fees. Is there a substantial difference between a >>traditional RMA and the DVDCCA? > >It would be interesting to look at all of the safeguards put into >place for music licensing. Musical scores are subject to a >compulsory license in section 115, which has a specific reference to >antitrust concerns and negotiation proceedings. I don't know the >mechanics there -- but it could be grounds for an argument that the >DVDCCA doesn't have the same antitrust exemption. Antitrust claims against BMI and ASCAP were rejected in BMI vs CBS 441 US 1 (1979). The court rejected claims that the blanket licenses were "price fixing per se unlawful under the antitrust laws." (Incomplete) Summary of the case: BMI and ASCAP had long used a "blanket' form of license, in which the licenser sold rights to it's entire repoitoire on a yearly basis, for a fixed fee or percentage of revenues. This was the only form of licence available through BMI or ASCAP. CBS had attempted to purchase rights to ~2000 specific works, believing that it might be able to negotiate a lower price, but was rebuffed. CBS sued, on the grounds that this behavior constituted restraint of trade. The Supreme Court rejected these claims, noting that "... the substantial restraints placed on ASCAP and its members by the consent decree must not be ignored. The District Court found that there was no legal, practical, or conspiratorial impediment to CBS's obtaining individual licenses; CBS, in short, had a real choice. With this background in mind, which plainly enough indicates that over the years, and in the fact of available alternatives, the blanket license has provided an acceptable mechanism for at least a large part of the market for the performing rights to copyrighted musical compositions, we cannot agree that it should automatically be declared illegal in all of its many manifestations. Rather, when attacked, it should be subjected to a more discriminating examination under the rule of reason. It may not ultimately survive that attack, but that is not the issue before us today." I believe that the DVDCCA may fufill a similar role to that of ASCAP and BMI, in acting as a middleman between copyright owners and users. The court gave a pretty good expanation of why rights management agencies exist (supra, at 20). " The blanket license, as we see it, is not a "naked restrain[t] of trade with no purpose except stifling of competition," White Motor Co. v United States, 372 US 253, 263, 9 L Ed 2d 738, 83 S Ct 696 (1963), but rather accompanies the integration of sales, monitoring, and enforcement against unauthorized copyright use. See L. Sullivan, Handbook of the Law of Antitrust § 59, p 154 (1977). As we have already indicated, ASCAP and the blanket license developed together out of the practical situation in the marketplace: thousands of users, thousands of copyright owners, and millions of compositions. Most users want unplanned, [60 L Ed 2d 17] rapid, and indemnified access to any and all of the repertory of compositions, and the owners want a reliable method of collecting for the use of their copyrights. Individual sales transactions in this industry are quite expensive, as would be individual monitoring and enforcement, especially in light of the resources of single composers. Indeed, as both the Court of Appeals and CBS recognize, the costs are prohibitive for licenses with individual radio stations, nightclubs, and restaurants, 562 F.2d, at 140 n 26, and it was in that milieu that the blanket license arose. A middleman with a blanket license was an obvious necessity if the thousands of individual negotiations, a virtual impossibility, were to be avoided. Also, individual fees for the use of individual compositions would presuppose an intricate schedule of fees and uses, as well as a difficult and expensive reporting problem for the user and policing task for the copyright owner. " Since the DVDCCA grants blanket rights to play any Regions's DVDs, so long as the user has access to the physical media, the movie can be played. No licensed player, no blanket license. No blanket licence: expensive individual licences. >(for reference) >1201(a)(3)(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." Here, at least, the court did not specifically enjoin the transmission of copyright authority through a third party. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 02:29:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20654 for dvd-discuss-outgoing; Fri, 24 Mar 2000 02:29:49 -0500 Received: from rz03.FH-Karlsruhe.DE (rz03.RZ-FDDI.FH-Karlsruhe.DE [193.196.125.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20651 for ; Fri, 24 Mar 2000 02:29:48 -0500 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12YOY0-000HOC-00 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 08:30:20 +0100 Subject: Re: [dvd-discuss] Announcement of a second forum To: dvd-discuss@eon.law.harvard.edu Date: Fri, 24 Mar 100 08:30:20 +0100 (CET) In-Reply-To: <4.2.2.20000323161613.00b99820@law.harvard.edu> from "Wendy Seltzer" at Mar 23, 0 04:39:19 pm From: Sham Gardner X-Mailer: ELM [version 2.4 PL25] MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > I have no intention of abandoning dvd-discuss. > > My so-called blessing on the creation of a second list was simply an > acknowledgment that multiple forums might be useful (and that I could not > in any event stop people from conversing by private email if they > chose). It is my impression that the creators of the other list intend to > remain active participants on dvd-discuss, as I have asked them at every > opportunity. If some people feel that they can make a better contribution > to the open process by first discussing a question among themselves, why > not give that a try? > > It's difficult to manage all of this in realtime. We're working to develop > a framework for open argument at the same time we're working to develop the > argument itself. _Anyone_ with suggestions for coordination of efforts, > refinement of arguments, or logistics is invited to share them with me or > with this list. It may take me a while to read and respond to everything, > but I am reading it and it is making a difference. I don't know exact nature of the closed list, but I get the imression it's being used by lawyers and others with significant knowledge of legal matters, who want to avoid the high traffic of this list. I would suggest making the currently closed list open to all, but read-only for regular subscribers, with responses redirected here. That way we can respond to postings from the legal folk and those of them that so choose can still avoid being swamped by this list. Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 02:42:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA21962 for dvd-discuss-outgoing; Fri, 24 Mar 2000 02:42:31 -0500 Received: from rz03.FH-Karlsruhe.DE (rz03.RZ-FDDI.FH-Karlsruhe.DE [193.196.125.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA21959 for ; Fri, 24 Mar 2000 02:42:30 -0500 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12YOkK-000HQm-00 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 08:43:04 +0100 Subject: Re: [dvd-discuss] Announcement of a second forum To: dvd-discuss@eon.law.harvard.edu Date: Fri, 24 Mar 100 08:43:03 +0100 (CET) In-Reply-To: from "Sham Gardner" at Mar 24, 0 08:33:50 am From: Sham Gardner X-Mailer: ELM [version 2.4 PL25] MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I don't know exact nature of the closed list, but I get the imression it's > being used by lawyers and others with significant knowledge of legal > matters, who want to avoid the high traffic of this list. I would suggest > making the currently closed list open to all, but read-only for regular > subscribers, with responses redirected here. That way we can respond to > postings from the legal folk and those of them that so choose can still > avoid being swamped by this list. OK ignore this. After posting it I read another posting that said the members of the closed list wanted to converse privately, so my suggestion about making it read-only won't work. Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 05:43:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA28573 for dvd-discuss-outgoing; Fri, 24 Mar 2000 05:43:52 -0500 Received: from kruuna.Helsinki.FI (ssyreeni@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA28568 for ; Fri, 24 Mar 2000 05:43:50 -0500 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id MAA21119 for ; Fri, 24 Mar 2000 12:44:21 +0200 (EET) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 24 Mar 2000 12:44:20 +0200 (EET) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggestion In-Reply-To: <20000323192233.K22416@linuxpower.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 23 Mar 2000 greslin@linuxpower.org wrote: >we need to start putting together an Open Source for Lawyers FAQ. Providing >this sort of information would go a *long* way to making sure that press >articles are accurate and would greatly help bring the lawyers up to speed >on *our* side of the world. > >I'm starting work on putting this sort of FAQ together. Techies: your >help counts for a lot here. Speak up, and let's get this work underway. OK. A couple of suggestions for topics: -open source defined (I don't quite know how to frame this for open content, perhaps a reference to http://www.opencontent.org/). -the different kinds of open source (pd, freeware etc.) -why it is good for both individuals and business (synergy benefits) -some myths: open source always means free (say, netscape/mozilla), open source means there is no copyright on the work (GNU licence) -what is GNU/OSF + some of the more important other open source/content projects I might take on a couple of these, say the classification and the benefits. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 07:23:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA05507 for dvd-discuss-outgoing; Fri, 24 Mar 2000 07:23:55 -0500 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA05504 for ; Fri, 24 Mar 2000 07:23:53 -0500 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 12YT8b-0001RE-00 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 13:24:25 +0100 Date: Fri, 24 Mar 2000 13:24:25 +0100 (CET) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] "prevents, restricts, or limits ..." In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Why 1201b does not apply to CSS: 1201(B)(2)(B) a technological measure ''effectively protects a right of a copyright owner under this title'' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title. 1201b only applies to technological measures that limits the rights of a copyright holder. The rights of a copyright holder are enumerated and well defined. Among them are public display and manufacture of copyrighted works. A copyright holder will have to actively exercise one or more of his rights to distribute his works within the monopoly granted in copyright law. Such an exertion may at the discretion of the copyright holder be narrowed to include display to paying audience, or techological means such as encryption can be applied to limit viewing to subscribers of certain pay TV channels etc. CSS on the other hand is a scheme designed to _extend_ the rights of a copyright holder to include control of home viewing. Such rights are not granted in copyright law (first sale doctrine), and may consequently not be further limited. If CSS is intended to limit piracy, it should suffice to say that unauthorized copying is not a right of a copyright holder (It must be assumed that whatever copy the copyright holder makes, must have been authorized - otherwise there would be a contradiction in terms), but rather an infringement upon such a right. In short CSS is not a technology that "prevents, restricts, or otherwise limits the exercise of a right of a copyright owner". So in this techies reading of 1201b it seems clear that the section is intended to protect distribution, rather than playback / unauthorized copying of copyrighted works. I won't be checking mail until Monday, so I expect to be thourougly shot down, preferably in flames by then. On the other hand if this argument can withstand all critisims the NYC case will lack merit on both 1201a , and 1201b, which can only be a good thing. frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 10:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA27206 for dvd-discuss-outgoing; Fri, 24 Mar 2000 10:50:36 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA27203 for ; Fri, 24 Mar 2000 10:50:35 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA04725 for ; Fri, 24 Mar 2000 10:51:09 -0500 (EST) Date: Fri, 24 Mar 2000 10:51:08 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggestion In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 24 Mar 2000, Sampo A Syreeni wrote: > OK. A couple of suggestions for topics: > -open source defined (I don't quite know how to frame this for open content, > perhaps a reference to http://www.opencontent.org/). The Opensource.org has a good definition here: http://www.opensource.org/osd.html. One problem, of course, is that the opensource definition may not satisfy all the parties in this case. > -the different kinds of open source (pd, freeware etc.) A good "starting" point may be the following joke: Eric: I want to live in a world where software doesn't suck. Richard: Any software that isn't free sucks. Linus: I'm interested in free beer. http://www.lwn.net/1999/0304/a/panel.html We should also seek to distinguish our use of "free software" from the so called "freeware", "public domain" and (horrors) "shareware." This may not be so easy, as I still see articles in which Linux is referred to as shareware. Putting aside the fact that L. Torvalds was making a joke, let's examine the three principles of "free software" It is free. (free beer, free software, or open sorce.) It is available for the cost of the medium. People are free to charge more, but they must offer the sourcecode gratis. Redhat, for instance, offers mousepads, bumper stickers, manuals, and support in its retail products. It is under no obligation to provide these extra items on a costfree basis. While it might be nice to have a costfree DVD player, many Linux users would not be satisfied with a costfree binary. Such a product could not be comapatible with changing kernels. Besides, not everybody has Redhat (which seems to be synomynous with Linux in some marketing divisions). In the Windows 9X world, the DVD products differ substantially. WinDVD offers multispeaker surround through DirectSound3D. ATI/Cinemaster only provides stereo and AC-3 exteranal decoding. WinDVD is a resource hog. ATI/Cinemaster works on a Pentium-233. The image quality of ATI/Cinemaster is better than many of it's competitors. Wouldn't it be great if we could combine features, producing a player that offered multichannel decoding, great image quality, and efficiency? With opensource software, this is possible. With costfree binaries, it might not be. The source code is available, and freely modifiable (free software, opensource). Opensource includes several liscences, including X, GPL, and BSD. It has been promoted as free software, without the politics. An opensource liscence might allow bianry modules (as in X), it might require extensive citation (as in BSD). It might provide for central control by the originating author (APSL) (see http://www.gnu.org/philosophy/apsl.html). Of course, the css-auth softaware is distributed under the GPL, which makes it Free software. Free software is software that comes with permission for anyone to use, copy, and distribute, either verbatim or with modifications, either gratis or for a fee. In particular, this means that source code must be available. (http://www.gnu.org/philosophy/categories.html) It explicitly protects a user's right to "run, study, redistribute, or improve" a program. css-auth is Free software. Whether this provides any advantages over Open Source software is a matter for debate. For instance, it is possible the GPL may enjoin the production of "black boxes". A generic Open source liscence might not neccessarily prohibit this use. > -why it is good for both individuals and business (synergy benefits) > -some myths: open source always means free (say, netscape/mozilla), > open source means there is no copyright on the work (GNU licence) > -what is GNU/OSF + some of the more important other open > source/content projects Richard: Any software that isn't free sucks.> > I might take on a couple of these, say the classification and the > benefits. Linus: I'm interested in free beer.> > Sampo Syreeni , aka decoy, student/math/Helsinki university > > From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 12:39:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12392 for dvd-discuss-outgoing; Fri, 24 Mar 2000 12:39:02 -0500 Received: from dial151.roadrunner.com (dial151.cybermesa.com [209.12.75.151]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA12389 for ; Fri, 24 Mar 2000 12:38:58 -0500 Received: (from paul@localhost) by dial151.roadrunner.com (8.8.7/8.8.7) id KAA00811 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 10:43:00 -0700 Date: Fri, 24 Mar 2000 10:42:59 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggestion Message-ID: <20000324104258.A635@localhost> References: <20000323192233.K22416@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Fri, Mar 24, 2000 at 12:44:20PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 12:44:20PM +0200, Sampo A Syreeni wrote: > On Thu, 23 Mar 2000 greslin@linuxpower.org wrote: > > >we need to start putting together an Open Source for Lawyers FAQ. Providing > >this sort of information would go a *long* way to making sure that press > >articles are accurate and would greatly help bring the lawyers up to speed > >on *our* side of the world. > > > >I'm starting work on putting this sort of FAQ together. Techies: your > >help counts for a lot here. Speak up, and let's get this work underway. > > OK. A couple of suggestions for topics: > -open source defined (I don't quite know how to frame this for open content, > perhaps a reference to http://www.opencontent.org/). > -the different kinds of open source (pd, freeware etc.) Public domain != "open source" or "free software". The copyright status of an executable binary could be no copyright, i.e. public domain. The source code might not exist any more. "Freeware" might be binary only. If source is available, changes would probably not be redistributable. > -why it is good for both individuals and business (synergy benefits) I don't understand this. > -some myths: open source always means free (say, netscape/mozilla), open > source means there is no copyright on the work (GNU license) It is common to run into people who are even more confused than this. They don't know the difference between copyright and a license. Meaning what they say: "the gnu copyright" or "in the public domain for non-commercial use." - The English language has two distinct meaning for "free," one is "freedom" and the other is "gratis." - My stab at the political difference between free and open software/source: Stallman & FSF, "Free software is about the freedom to program. The GPL is a tool to achieve that end." Open Source, "Peer-reviewed, modifiable software is better, faster, smaller, less costly, and always better than proprietary software if enough people work on it. 'Enough' is not very many people."

Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 12:53:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14837 for dvd-discuss-outgoing; Fri, 24 Mar 2000 12:53:25 -0500 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14821 for ; Fri, 24 Mar 2000 12:53:24 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id MAA23165 for ; Fri, 24 Mar 2000 12:53:57 -0500 (EST) Date: Fri, 24 Mar 2000 12:53:55 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Good journal article Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just though I might point out a good journal article that covers the DMCA, Feist, First Sale, Copy Protection, Fair Use, etc. http://www.cardozo.yu.edu/aelj/Articles/theright.htm Malla Pollack, "The right to know?: deliminating database protection at the juncture of the Commerce Clause, the Intellectual Property Clause and the First Amendment 17 Cardozo Arts & Ent. L.J. 47 (1999). Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 13:42:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20310 for dvd-discuss-outgoing; Fri, 24 Mar 2000 13:42:41 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA20307 for ; Fri, 24 Mar 2000 13:42:40 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id BD4AF770B; Fri, 24 Mar 2000 12:43:42 -0600 (CST) Date: Fri, 24 Mar 2000 12:43:42 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Message-ID: <20000324124342.A9592@arh1176.urh.uiuc.edu> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> <200003240529.AAA08762@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <200003240529.AAA08762@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Mar 24, 2000 at 12:29:58AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 12:29:58AM -0500, Robert S. Thau wrote: > Wendy Seltzer writes: > > >>The language of the 1201(a)(3)(b) definition is tortured enough that > > >>I'm not sure *how* to apply it to the case of a "technological > > >>measure" like CSS in which a third party, and not the copyright owner > > >>itself, is handing out the keys --- if a lawyer would like to clarify > > >>the point, I'd be grateful. But it's not obvious to me that systems > > >>like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... > > > > Is your question whether the authorization mechanism is effective, not just > > the technological measure? That if we can say there's never an "authority > > of the copyright owner," then the "ordinary course of operation" doesn't > > require that authority and hence there's nothing to circumvent? Hmmm. > > I think so, but let me try and rephrase it to be sure... > > The question is whether a "technological measure" that takes no notice > of the "authority of the copyright owner" (but only the authority of > third parties like the DVDCCA) can be considered "effective" under > 1201(a)(3)(B). (Remember that all a DVD player needs "in the ordinary > course of its operation" is a player key obtained from the DVDCCA; > after that, access to the title key and the content itself is > automatic). Does anyone know what the terms are of a license between the DVD CCA and a content producer? I would be curious to see if there is any mention of authority. Our argument for authority at the point of sale might be in trouble if there is an exclusive grant of authority to decrypt to the DVD CCA. I suppose if the MPAA argues this, we could simply say that they must have broken their agreement by implicitly granting users authority to decrypt. Anyway, that argument is part of another thread. -- Steven Barker scbarker@uiuc.edu Things fall apart; the centre cannot hold. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 14:31:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25998 for dvd-discuss-outgoing; Fri, 24 Mar 2000 14:31:51 -0500 Received: from mercury.Clearway (host100.56jfk.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25995 for ; Fri, 24 Mar 2000 14:31:49 -0500 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Fri, 24 Mar 2000 14:33:09 -0500 Message-ID: <611C0CE12596D311B466009027D5E7591E4BD6@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] "prevents, restricts, or limits ..." Date: Fri, 24 Mar 2000 14:33:09 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consider for a moment what happens with protection of software. A key is required either at installation time or at time of use. The purpose of making the customer enter the key is to prove the user == the purchaser. "Key" is used here to be an answer to a challenge, not in a cryptographic sense. If in total the CSS system tries to make certain that the person viewing the work is in possession of the physical medium, then it could be subject to 1201b. However, I think it a valid argument that because of the huge number of techological measures requried to gain access to ANY work stored on a computer, 1201 in all its forms must be applied as narrowly as possible. In order to apply, the code must be both effective and specific. -----Original Message----- From: Frank Andrew Stevenson [mailto:frank@funcom.com] Sent: Friday, March 24, 2000 7:24 AM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] "prevents, restricts, or limits ..." 1201b only applies to technological measures that limits the rights of a copyright holder. From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 14:50:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29666 for dvd-discuss-outgoing; Fri, 24 Mar 2000 14:50:56 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA29663 for ; Fri, 24 Mar 2000 14:50:55 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id A9055770B; Fri, 24 Mar 2000 13:51:57 -0600 (CST) Date: Fri, 24 Mar 2000 13:51:57 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "prevents, restricts, or limits ..." Message-ID: <20000324135157.B9592@arh1176.urh.uiuc.edu> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: ; from frank@funcom.com on Fri, Mar 24, 2000 at 01:24:25PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 01:24:25PM +0100, Frank Andrew Stevenson wrote: > Why 1201b does not apply to CSS: This may be irrelevant to the cases because the MPAA is filing under 1201(a)(2) which has different language ("without the authority of the copyright holder"). > 1201(B)(2)(B) > a technological measure ''effectively protects a right of a > copyright owner under this title'' if the measure, in the > ordinary course of its operation, prevents, restricts, or > otherwise limits the exercise of a right of a copyright owner > under this title. > > 1201b only applies to technological measures that limits the rights of a > copyright holder. I think this is a misinterpretation of the law (though that may be because it is poorly worded). I think it is intended to limit the ability of *other people* to exercise rights that are exclusive to the copyright holder. This does not mean that it takes away the right of the copyright holder, rather it allows them to protect those rights better by using "technological measures". > CSS on the other hand is a scheme designed to _extend_ the rights of a > copyright holder to include control of home viewing. Such rights are not > granted in copyright law (first sale doctrine), and may consequently not > be further limited. If CSS is intended to limit piracy, it should suffice > to say that unauthorized copying is not a right of a copyright holder > (It must be assumed that whatever copy the copyright holder makes, must > have been authorized - otherwise there would be a contradiction in terms), > but rather an infringement upon such a right. In short CSS is not a > technology that "prevents, restricts, or otherwise limits the exercise of > a right of a copyright owner". Yes, but the MPAA would argue that CSS protects their members' rights to control access to their works. They want to convince the judge that 1201(a) grants them this new "paracopyright". If they win this right and DeCSS is found to decrypt a DVD by "avoiding, bypassing, removing, deactivating or otherwise imparing a technological measure" then they might have a case under -- Steven Barker scbarker@uiuc.edu "jackpot: you may have an unneccessary change record" -- message from "diff" From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 14:56:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30432 for dvd-discuss-outgoing; Fri, 24 Mar 2000 14:56:48 -0500 Received: from smtp11.bellglobal.com (smtp11.bellglobal.com [204.101.251.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30428 for ; Fri, 24 Mar 2000 14:56:47 -0500 Received: from sympatico.ca (ppp5617.on.bellglobal.com [206.172.197.169]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id PAA25749 for ; Fri, 24 Mar 2000 15:02:52 -0500 (EST) Message-ID: <38DBCABC.6CFA14EE@sympatico.ca> Date: Fri, 24 Mar 2000 15:06:20 -0500 From: Ian Hay Organization: Springfield Police X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> <200003240529.AAA08762@soggy-fibers.ai.mit.edu> <20000324124342.A9592@arh1176.urh.uiuc.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker wrote: > > On Fri, Mar 24, 2000 at 12:29:58AM -0500, Robert S. Thau wrote: > > Wendy Seltzer writes: > > > >>The language of the 1201(a)(3)(b) definition is tortured enough that > > > >>I'm not sure *how* to apply it to the case of a "technological > > > >>measure" like CSS in which a third party, and not the copyright owner > > > >>itself, is handing out the keys --- if a lawyer would like to clarify > > > >>the point, I'd be grateful. But it's not obvious to me that systems > > > >>like CSS satisfy the 1201(a)(3)(b) definition of effectiveness... > > > > > > Is your question whether the authorization mechanism is effective, not just > > > the technological measure? That if we can say there's never an "authority > > > of the copyright owner," then the "ordinary course of operation" doesn't > > > require that authority and hence there's nothing to circumvent? Hmmm. > > > > I think so, but let me try and rephrase it to be sure... > > > > The question is whether a "technological measure" that takes no notice > > of the "authority of the copyright owner" (but only the authority of > > third parties like the DVDCCA) can be considered "effective" under > > 1201(a)(3)(B). (Remember that all a DVD player needs "in the ordinary > > course of its operation" is a player key obtained from the DVDCCA; > > after that, access to the title key and the content itself is > > automatic). > > Does anyone know what the terms are of a license between the DVD CCA and a > content producer? I would be curious to see if there is any mention of > authority. Our argument for authority at the point of sale might be in trouble > if there is an exclusive grant of authority to decrypt to the DVD CCA. Why would it matter? The question is not whether the DVD CCA has the authority to decrypt, the question is whether the -consumer- has the authority to decrypt. Even if the authority to the DVD CCA is passed on in their agreement, that authority is nowhere passed on explicitly to the consumer. > I suppose if the MPAA argues this, we could simply say that they must have > broken their agreement by implicitly granting users authority to decrypt. Bingo. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 15:27:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06535 for dvd-discuss-outgoing; Fri, 24 Mar 2000 15:27:15 -0500 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA06532 for ; Fri, 24 Mar 2000 15:27:14 -0500 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.18) with ESMTP id PAA11422 for ; Fri, 24 Mar 2000 15:27:49 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA13813; Fri, 24 Mar 2000 15:27:48 -0500 (EST) Date: Fri, 24 Mar 2000 15:27:48 -0500 (EST) Message-Id: <200003242027.PAA13813@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <20000324124342.A9592@arh1176.urh.uiuc.edu> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> <200003240529.AAA08762@soggy-fibers.ai.mit.edu> <20000324124342.A9592@arh1176.urh.uiuc.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: > Does anyone know what the terms are of a license between the DVD > CCA and a content producer? I would be curious to see if there is > any mention of authority. Our argument for authority at the point > of sale might be in trouble if there is an exclusive grant of > authority to decrypt to the DVD CCA. I don't... but that boils down to saying that the authorized player *itself* conveys the copyright holder's authority (in the form of the player key licensed from the DVDCCA). And the license for the Xing player (once again) states very explicitly that it does no such thing: 7. All video, audio and other content accessed through the Product is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 15:56:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08928 for dvd-discuss-outgoing; Fri, 24 Mar 2000 15:56:17 -0500 Received: from arh1176.urh.uiuc.edu (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA08925 for ; Fri, 24 Mar 2000 15:56:16 -0500 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 599E8770B; Fri, 24 Mar 2000 14:57:19 -0600 (CST) Date: Fri, 24 Mar 2000 14:57:19 -0600 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... Message-ID: <20000324145719.D9592@arh1176.urh.uiuc.edu> References: <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> <200003240529.AAA08762@soggy-fibers.ai.mit.edu> <20000324124342.A9592@arh1176.urh.uiuc.edu> <38DBCABC.6CFA14EE@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <38DBCABC.6CFA14EE@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Mar 24, 2000 at 03:06:20PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 03:06:20PM -0500, Ian Hay wrote: > Steven Barker wrote: > > Our argument for authority at the point of sale might be in trouble > > if there is an exclusive grant of authority to decrypt to the DVD CCA. > > Why would it matter? The question is not whether the DVD CCA has the > authority to decrypt, the question is whether the -consumer- has the > authority to decrypt. Even if the authority to the DVD CCA is passed on > in their agreement, that authority is nowhere passed on explicitly to > the consumer. My point is that if there is an *exclusive* license to grant authority (I didn'tword this as well before), the MPAA can argue that it did not authorized the user to decrypt because onle the DVDCCA can do that. If the copyright holder gives it's rights to grant authority to a third party, an argument claiming to have that right directly from them would be harder. > > I suppose if the MPAA argues this, we could simply say that they must have > > broken their agreement by implicitly granting users authority to decrypt. > > Bingo. -- Steven Barker scbarker@uiuc.edu ...Saure really turns out to be an adept at the difficult art of papryomancy, the ability to prophesy through contemplating the way people roll reefers - the shape, the licking pattern, the wrinkles and folds or absence thereof in the paper. "You will soon be in love," sez Saure, "see, this line here." "It's long, isn't it? Does that mean --" "Length is usually intensity. Not time." -- Thomas Pynchon, _Gravity's Rainbow_ From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 17:05:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA19460 for dvd-discuss-outgoing; Fri, 24 Mar 2000 17:05:48 -0500 Received: from dial122.roadrunner.com (dial122.cybermesa.com [209.12.75.122]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA19381 for ; Fri, 24 Mar 2000 17:05:39 -0500 Received: (from paul@localhost) by dial122.roadrunner.com (8.8.7/8.8.7) id PAA01668 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 15:09:45 -0700 Date: Fri, 24 Mar 2000 15:09:43 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Access control, copy control and encryption Message-ID: <20000324150943.A1584@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I started out trying to look at the "wedge" between 1201(a)(2) and 1201(b), I ended up finding other interesting things too. "Central among these techniques is cryptography: the use of transformations of data intended to make the data useless to one's opponents. Such transformations provide solutions to two major problems of data security: the _privacy problem_, preventing an opponent from extracting information from a communication channel, and the _authentication problem_, preventing an opponent from injecting false data into the channel or altering messages so that their meaning is changed," emphasis in original: Whitfield Diffie and Martin Hellman, "Privacy and Authentication: An Introduction to Cryptography," Proc. IEEE, _67_, 397 (1979). Colloquial use of the word "encryption" usually refers to solving the privacy problem. Essentially the same techniques are used to authenticate, make hash functions, etc. These are things that do not solve the privacy problem. The content scrambling system doesn't fit into this classification scheme because *you the viewer are not an opponent, you are a customer, and most importantly, the data is not private, it has been published.* Yes, the techniques of cryptography are used to implement access control, but any equation of access control with encryption in the functional sense of solving the privacy problem is a false one. CSS is an attempt to use the techniques of cryptography to condition access to copyrighted material on criteria specified by the copyright holder, not deny it entirely. In the 21 years since Diffie and Hellman published their review, cryptographers have defined and worked on other functional problems. Some are very much like the "problem" CSS is trying to "solve." One of those additional problems beyond privacy and authentication is insuring that some messages are either available to be read in full, or not read at all. The techniques used to solve this problem are a class of data transforms known as all-or-nothing, or "packaging" transforms. You can read all about these transforms in Ron Rivest's article: The basic idea is that a finite-length message is packaged, and then split into blocks (finite length is equivalent to saying that there is no streaming mode for this transformation.) If even one block of the packaged data is missing, the recipient finds that recovering any part of the message is computationally infeasible (in other words, one missing block means that from a functional standpoint, the remaining data might as well be encrypted.) If one has all the blocks of data, then the recipient has all the data she needs to invert and recover the original message. In general the algorithm will be public, so this is not a privacy measure, it an all-or-nothing measure. The CSS system is basically a packaging scheme, but with two twists. But first, a description of a packaging scheme to achieve "partial" copy control: If one runs a packaging transform on 1024 blocks of data to make a packaged group of blocks, one would have a system that imitates CSS's copy control in all regard but one --- there would be no player key. By burning every 1024th block of "consumer" media, one would have a "partial" copy control system in the same way that just burning the disk-key block of DVD media is "partial" copy control. Burning the disk-key block denies access to the encrypted disk-keys on "consumer" duplicated DVDs, leaving the data on the duplicate encrypted in the sense of Diffie and Hellman, whereas on the original, it is not encrypted in the sense of Diffie and Hellman. Burning every 1024th block on media destined to hold packaged data has the same effect. This scheme requires a secret algorithm to be partial copy control. This secrecy provides an excuse to license the algorithm, just like CSS is licensed. The first twist: CSS has player keys, the packaging system doesn't. OK, so the analogy breaks here, but an examination of why is _very_ interesting. The second twist: for the packaging scheme, the packaging algorithm must be secret, otherwise the "consumer" would simply unpackage the data, and write the plain-text data-stream to a new medium, skipping every 1024th block. No more "partial" copy control. The "licensed access control" here is also completely dependent on the secrecy of the packaging algorithm. If the algorithm is public, anyone can build a player/decoder, and there is nothing the copyright holders can do about it technically (i.e. no key revocation.) What about the CSS scheme? If the crypto system were any good, the DVD-CCA could publish the algorithm, and one would not expect any harm to CSS's function of "partial" copy control. Only the loss of key-material should make a difference in the engineering sense. However, publication of the algorithm would mean that competitors could manufacture their own CSS equipment, with incompatible player keys. In order to insure compatibility, competing manufacturers would have to share their player-keys with copyright holders or disk manufacturers. Publication of the _algorithm_ means the DCCA/MPAA lose the _player_ key as a club with which they can bludgeon the manufacturers. Under the current player-key licensing system, if a manufacturer doesn't behave, the DCCA "revokes" the player key, and knowledge of the algorithm does the manufacturer no good. They are locked out of the market. With a public algorithm, the manufacturers can set up a key licensing authority with which they can bludgeon the copyright holders. No matter how you slice it, player keys allow one group to beat the hell out of another. Point 1: I think we can argue that in the context of first sale, player key are, in and of themselves, tying. Point 2: To the extent that sale of a DIVX-like disk is a first-sale transactions, the authorization schemes are an attempt to regulate away the historical copyright bargain set forth by "publication" and "first-sale." Point 3: Saying that "CSS is 'home' copy control is incomplete and misleading. The "copy control" features of DVD depend critically on the absence of media with blank disk-key blocks and the difficulty of "authenticating" with DVD drives to recover the disk-key block. Without these features, CSS would be utterly irrelevant to _copy_ control. It's function as access control would be unaffected. Cryptographically speaking, relying on the secrecy of the algorithm to achieve copy control is a stupid idea, but so is handing someone the player keys along with their DVD drive and expecting that one gets any actual control over access rather than a de novo offense. CSS and packaging are not exactly the same technical stupidity, but both systems have some aspect that is irreducibly stupid. The question is which technical aspect. Those technical flaws exist because the design objectives of both systems are a confused mix. Both systems try to provide a fix-up to DVD for conflicting goals: 1. Providing a measure of access control to a tangible copy of data. 2. Being one, but not the sole, factor in creating a 'casual' copy control system. 3. No central licensing as with DIVX. By talking about #1 and #2, the MPAA appears to be trying to provide cover for two other aspects that the MPAA doesn't want to talk about: a. Giving the copyright holder a lever to use against the drive manufacturers. b. Failing to address industrial duplication in any way, shape or form. Point 4. Current DVD players ship with the disk-key installed. Converting DVD to DIVX in the future would be a fairly simple engineering feat. DVD is an attempt to keep the possibility of DIVX in the future alive. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 17:28:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21324 for dvd-discuss-outgoing; Fri, 24 Mar 2000 17:28:38 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21321 for ; Fri, 24 Mar 2000 17:28:36 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 24 Mar 2000 14:29:35 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19FA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Definitions of "effective" in 1201... Date: Fri, 24 Mar 2000 14:29:33 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] ... > But if not, then one might argue that the CSS machinery does not > require "the application of information, ... with the authority of the > copyright owner, to gain access to the work" (which is the > 1201(a)(3)(B) definition), but instead requires the application of > information with the authority of a third party (the DVDCCA). > Hmmm... the information to be applied (the key) may be provided by the third party (DVDCCA), but the authority to apply that information may still come from the copyright holder. To return to our favorite analogy (Nimmer): You might get a key to my house from the locksmith who put the locks in the door, but the authority to -use- that key must still come from me. The copyright holder still the homeowner, the DVDCCA is merely the locksmith hired by the homeowner to put in the locks. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 18:12:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA25106 for dvd-discuss-outgoing; Fri, 24 Mar 2000 18:12:55 -0500 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA25103 for ; Fri, 24 Mar 2000 18:12:54 -0500 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 24 Mar 2000 15:13:52 -0800 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B19FD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] "prevents, restricts, or limits ..." Date: Fri, 24 Mar 2000 15:13:50 -0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Steven Barker [mailto:steve@arh1176.urh.uiuc.edu] ... > > Yes, but the MPAA would argue that CSS protects their > members' rights to > control access to their works. They want to convince the > judge that 1201(a) > grants them this new "paracopyright". If they win this right > and DeCSS is > found to decrypt a DVD by "avoiding, bypassing, removing, > deactivating or > otherwise imparing a technological measure" then they might > have a case under If this is about the copyright holder's right to "control access", then it is trivially simple: they can control access by not selling me the work in question. Once it has been sold, though, they do not have the right to say "oh, but wait, there's more ..." -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 18:30:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA26560 for dvd-discuss-outgoing; Fri, 24 Mar 2000 18:30:12 -0500 Received: from dial208.roadrunner.com (dial208.cybermesa.com [209.12.75.208]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA26557 for ; Fri, 24 Mar 2000 18:30:07 -0500 Received: (from paul@localhost) by dial208.roadrunner.com (8.8.7/8.8.7) id QAA02166 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 16:34:10 -0700 Date: Fri, 24 Mar 2000 16:34:08 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "prevents, restricts, or limits ..." Message-ID: <20000324163408.A2076@localhost> References: <611C0CE12596D311B466009027D5E7591E4BD6@host100.56jfk.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4BD6@host100.56jfk.com>; from Ray@clearway.com on Fri, Mar 24, 2000 at 02:33:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 02:33:09PM -0500, Leland Ray wrote: > > Consider for a moment what happens with protection of software. A key is > required either at installation time or at time of use. The purpose > of making the customer enter the key is to prove the user == the purchaser. > "Key" is used here to be an answer to a challenge, not in a > cryptographic sense. > > If in total the CSS system tries to make certain that the person > viewing the work is in possession of the physical medium, then > it could be subject to 1201b. > CSS falls down flat on this one. The disk key proves that you bought a licensed player, not that you bought a non-infringing disk. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 19:13:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA31902 for dvd-discuss-outgoing; Fri, 24 Mar 2000 19:13:50 -0500 Received: from dial211.roadrunner.com (dial211.cybermesa.com [209.12.75.211]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA31899 for ; Fri, 24 Mar 2000 19:13:46 -0500 Received: (from paul@localhost) by dial211.roadrunner.com (8.8.7/8.8.7) id RAA02353 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 17:14:40 -0700 Date: Fri, 24 Mar 2000 17:14:38 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "prevents, restricts, or limits ..." Message-ID: <20000324171437.A2222@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: ; from frank@funcom.com on Fri, Mar 24, 2000 at 01:24:25PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 01:24:25PM +0100, Frank Andrew Stevenson wrote: > Why 1201b does not apply to CSS: > > 1201(B)(2)(B) > a technological measure ''effectively protects a right of a > copyright owner under this title'' if the measure, in the > ordinary course of its operation, prevents, restricts, or > otherwise limits the exercise of a right of a copyright owner > under this title. > > 1201b only applies to technological measures that limits the rights of a > copyright holder. The rights of a copyright holder are enumerated and well > defined. Among them are public display and manufacture of copyrighted > works. A copyright holder will have to actively exercise one or more of > his rights to distribute his works within the monopoly granted in > copyright law. Such an exertion may at the discretion of the copyright > holder be narrowed to include display to paying audience, or > technological means such as encryption can be applied to limit viewing to > subscribers of certain pay TV channels etc. > > CSS on the other hand is a scheme designed to _extend_ the rights of a > copyright holder to include control of home viewing. Such rights are not > granted in copyright law (first sale doctrine), and may consequently not > be further limited. If CSS is intended to limit piracy, it should suffice > to say that unauthorized copying is not a right of a copyright holder [ ... ] This isn't central to your conclusion, but I think you've missed a point. You're better off saying that § 106(4) includes the word "public," thus leaving private performance out of the picture. § 106(1) only says "reproduce," not "authorized reproduction." The statute is making a distinction between the activity in 1 through 6 and their status (i.e. authorized vs. unauthorized.) By mixing the activities listed in 1 -> 6 with their status, you're breaking the normal reading of the statute. Because (b)(2)(B) is broken, this doesn't change your conclusion, but it does open an avenue for the MPAA to object. The argument for § 1201(b) not applying to private performance would be true even if (b)(2)(B) didn't have an error in it. Your argument for (b) not applying to § 106(1) activities is only true because someone goofed when they wrote the law. This is really two arguments, not one. If (b)(2)(B) said, "right reserved to a copyright holder," like it should, rather than the erroneous, "right of a copyright owner," then the MPAA would try to sue under (b). Now you are into "wedge" territory. Can a technological measure, as a matter of law, provide protection under (a) and (b) and still the judge turns to the defense and says, "fair use is irrelevant"? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 19:37:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03442 for dvd-discuss-outgoing; Fri, 24 Mar 2000 19:37:08 -0500 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA03439 for ; Fri, 24 Mar 2000 19:37:07 -0500 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id TAA18178 for ; Fri, 24 Mar 2000 19:37:42 -0500 (EST) Message-Id: <4.2.2.20000324153349.00c6bdd0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 24 Mar 2000 19:37:39 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Definitions of "effective" in 1201... In-Reply-To: <200003242027.PAA13813@soggy-fibers.ai.mit.edu> References: <20000324124342.A9592@arh1176.urh.uiuc.edu> <200003230028.TAA01497@soggy-fibers.ai.mit.edu> <200003222235.RAA07291@eon.law.harvard.edu> <"v04205500b5005017ce9e(a)(091)208.58.196.56(093)*"@MHS> <4.2.2.20000323180759.00c65710@law.harvard.edu> <200003240529.AAA08762@soggy-fibers.ai.mit.edu> <20000324124342.A9592@arh1176.urh.uiuc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 03:27 PM 3/24/00 -0500, rst@ai.mit.edu wrote: >Steven Barker writes: > > Does anyone know what the terms are of a license between the DVD > > CCA and a content producer? I would be curious to see if there is > > any mention of authority. Our argument for authority at the point > > of sale might be in trouble if there is an exclusive grant of > > authority to decrypt to the DVD CCA. > >I don't... but that boils down to saying that the authorized player >*itself* conveys the copyright holder's authority (in the form of the >player key licensed from the DVDCCA). And the license for the Xing >player (once again) states very explicitly that it does no such thing: > > 7. All video, audio and other content accessed through the > Product is the property of the applicable content owner and may > be protected by applicable copyright law. This Agreement gives > you no rights to such content. There's an argument that the ordinary course of operation of a DVD on a "licensed" player clearly does not require any "application of a information, or a process or a treatment with the authority of the copyright owner" -- unless the MPAA is simultaneously claiming that Xing and anyone else with similar disclaimers are circumventers (not that they don't want to do this with Xing...) for distributing the player without granting the license. The chain of authority has a broken link -> many people are playing DVDs in "licensed" players without authority -> no authority is required for CSS decryption in the ordinary course -> there's no technological measure to circumvent So the MPAA says "we grant the authority to anyone with a licensed DVD player, to access through that player, only with that player's licensed software" ... and we hit them with the tying and vagueness arguments? --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 19:37:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03686 for dvd-discuss-outgoing; Fri, 24 Mar 2000 19:37:43 -0500 Received: from dial214.roadrunner.com (dial214.cybermesa.com [209.12.75.214]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA02842 for ; Fri, 24 Mar 2000 19:34:04 -0500 Received: (from paul@localhost) by dial214.roadrunner.com (8.8.7/8.8.7) id RAA02549 for dvd-discuss@eon.law.harvard.edu; Fri, 24 Mar 2000 17:36:35 -0700 Date: Fri, 24 Mar 2000 17:36:35 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "prevents, restricts, or limits ..." Message-ID: <20000324173634.A2413@localhost> References: <20000324171437.A2222@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000324171437.A2222@localhost>; from fenimore@roadrunner.com on Fri, Mar 24, 2000 at 05:14:38PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hmmm. Was I chasing my own tail? 17 U.S.C. § 106: Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: Doesn't a copy protection measure protect a copyright owner's exclusive right "to do," rather than "to authorize"? In that case, wouldn't 1201(b) apply to copy protection circumvention? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 20:14:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07672 for dvd-discuss-outgoing; Fri, 24 Mar 2000 20:14:04 -0500 Received: from web508.mail.yahoo.com (web508.mail.yahoo.com [128.11.68.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA07669 for ; Fri, 24 Mar 2000 20:14:02 -0500 Received: (qmail 15497 invoked by uid 60001); 25 Mar 2000 01:14:31 -0000 Message-ID: <20000325011431.15496.qmail@web508.mail.yahoo.com> Received: from [24.28.154.65] by web508.mail.yahoo.com; Fri, 24 Mar 2000 17:14:31 PST Date: Fri, 24 Mar 2000 17:14:31 -0800 (PST) From: Bryan Taylor Subject: Re: [dvd-discuss] Access control, copy control and encryption To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > I started out trying to look at the "wedge" between 1201(a)(2) and > 1201(b), I ended up finding other interesting things too. I have been thinking along these lines too. I think there is substantial ground to explore here that has been largely neglected. I think the wedge lies in defining "access" and distinguishing "access control" from "use control". An absolutely _AMAZING_ document was submitted by Miriam M. Nisbet, Legislative Counsel for the American Library Association to the Librarian of Congress. The document represents the position of the five leading library associations given to the LOC as part of the open comments period regarding interpretation of 1201(a). I strongly(!!) urge people to read it: http://lcweb.loc.gov/copyright/1201/comments/162.pdf Their comments center around a differenition between access control and use control. Access control, according to the Libraries, serves only to ensure legal aquisition of the copyrighted work. ____________ Here's some choice quotes: "Works protected by technological measures that attempt to control 'access' when they are really controlling 'rights' or 'uses' are not covered by Section 1201(a)." "The Librarian’s rulemaking authority in this proceeding must distinguish between technological measures that control lawful initial access from those technological measures than control use by continually monitoring access." "The record will reflect the urgency of maintaining fair access to works to facilitate fair uses. The copyright law demands such balanced access as the price for the exclusive rights otherwise granted to owners." _________________ I think this entire list has followed judge Kaplan and the MPAA in assuming that DeCSS is a tool that provides ACCESS to DVD content. DeCSS does no such thing. DeCSS provides USE of already accessed content. Indeed access to DVD content is provided at the store at the time of sale. Access control serves to ensure that "First Sale" occurs. Since 1201(a)(2) does not ban distribution of tools for circumventing technology measures that control USE. If the Librarian of Congress, or a judge follows the proposed definition of access control, then DeCSS is off the hook. > The content scrambling system doesn't fit into this classification > scheme because *you the viewer are not an opponent, you are a > customer, and most importantly, the data is not private, it has been > published.* Yes, the techniques of cryptography are used to implement > access control, but any equation of access control with encryption in > the functional sense of solving the privacy problem is a false one. This is EXACTLY the arguement that shows that CSS is not access control at all. It is USE control. > CSS is an attempt to use the techniques of cryptography to condition > access to copyrighted material on criteria specified by the copyright > holder, not deny it entirely. Right. The goal is NOT to ensure that only authorized users, who have paid the fair price to the publisher, are allowed to use the DVD. Instead, the goal is to regulate HOW authorized users will USE the DVD. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Mar 24 20:14:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07707 for dvd-discuss-outgoing; Fri, 24 Mar 2000 20:14:09 -0500 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc227.tampabay.rr.com [24.26.73.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA07704 for ; Fri, 24 Mar 2000 20:14:08 -0500 Received: (qmail 15028 invoked by uid 502); 25 Mar 2000 01:16:32 -0000 Date: Fri, 24 Mar 2000 20:16:32 -0500 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggestion Message-ID: <20000324201632.L22416@linuxpower.org> References: <20000323192233.K22416@linuxpower.org> <20000324104258.A635@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 0.95.4us In-Reply-To: <20000324104258.A635@localhost>; from Paul Fenimore on Fri, Mar 24, 2000 at 10:42:59AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 24, 2000 at 10:42:59AM -0700, Paul Fenimore wrote: >