dvd-discuss.archive.0004100640 764 764 5672564 7102777112 15355 0ustar wseltzerwseltzerFrom dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 00:07:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13350 for dvd-discuss-outgoing; Sat, 1 Apr 2000 00:07:38 -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 AAA13347 for ; Sat, 1 Apr 2000 00:07:37 -0500 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA24218 for ; Sat, 1 Apr 2000 00:08:30 -0500 (EST) Date: Sat, 1 Apr 2000 00:08:30 -0500 (EST) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Answer to #5 In-Reply-To: <38E574DF.BF12D98@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 Fri, 31 Mar 2000, Dana Parker wrote: > Large scale pirates who mass-produce copyrighted DVD movies and offer them for > sale do not need DeCSS. They have always been able to reproduce DVD movies for > profit by other means. CSS is not the least deterrrent to professional pirates. Devils advocate: but here goes: DeCSS affords the professional pirate the opportunity to add content. For instance, a piracy firm could take a DVD, and electronically add material that suggests that the firm has, say, Chinese distribution rights. They could also localise content for Chinese audiences (garish subtitles and all). Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 02:56:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA17503 for dvd-discuss-outgoing; Sat, 1 Apr 2000 02:56:16 -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 CAA17500 for ; Sat, 1 Apr 2000 02:56:15 -0500 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12bJiP-000GZ2-00 for dvd-discuss@eon.law.harvard.edu; Sat, 01 Apr 2000 09:57:09 +0100 Subject: Re: [dvd-discuss] Answer to #5 To: dvd-discuss@eon.law.harvard.edu Date: Sat, 1 Apr 100 09:57:09 +0100 (CET) In-Reply-To: from "Jeremy A Erwin" at Apr 1, 0 00:08:30 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 > Devils advocate: but here goes: > > DeCSS affords the professional pirate the opportunity to add content. For > instance, a piracy firm could take a DVD, and electronically > add material that suggests that the firm has, say, Chinese distribution > rights. They could also localise content for Chinese audiences (garish > subtitles and all). Probably not really a defence, since presumeably not all professional pirates are outside the US, but the DMCA doesn't apply in China and DeCSS didn't reach China by being exported from the US. A ruling in a US court would have no impact whatsoever on professional Piracy in China or anywhere else without a DMCA-like law. Sham From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 08:08:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA24360 for dvd-discuss-outgoing; Sat, 1 Apr 2000 08:08:01 -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 IAA24357 for ; Sat, 1 Apr 2000 08:07:59 -0500 Received: from cdpage.com (bdsl231.dnvr.uswest.net [209.180.249.231]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id FAA14569 for ; Sat, 1 Apr 2000 05:09:09 -0800 (PST) Message-ID: <38E5F484.F106E92E@cdpage.com> Date: Sat, 01 Apr 2000 06:07:16 -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] Answer to #5 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: > On Fri, 31 Mar 2000, Dana Parker wrote: > > > Large scale pirates who mass-produce copyrighted DVD movies and offer them for > > sale do not need DeCSS. They have always been able to reproduce DVD movies for > > profit by other means. CSS is not the least deterrrent to professional pirates. > > Devils advocate: but here goes: > > DeCSS affords the professional pirate the opportunity to add content. For > instance, a piracy firm could take a DVD, and electronically > add material that suggests that the firm has, say, Chinese distribution > rights. They could also localise content for Chinese audiences (garish > subtitles and all). > > Jeremy Erwin Professional pirates can do this without DeCSS. See http://www.dvddemystified.com/dvdfaq.html#4.8, fourth paragraph. -- 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 Sat Apr 1 09:01:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25361 for dvd-discuss-outgoing; Sat, 1 Apr 2000 09:01:58 -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 JAA25358 for ; Sat, 1 Apr 2000 09:01:57 -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 JAA03601 for ; Sat, 1 Apr 2000 09:02:49 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA01741; Sat, 1 Apr 2000 09:02:47 -0500 (EST) Date: Sat, 1 Apr 2000 09:02:47 -0500 (EST) Message-Id: <200004011402.JAA01741@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Answer to #5 In-Reply-To: <38E574DF.BF12D98@cdpage.com> References: <20000329225809.4998.qmail@web506.mail.yahoo.com> <4.2.2.20000330162635.00cf6600@law.harvard.edu> <38E574DF.BF12D98@cdpage.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dana Parker writes: > DeCSS is a tool for piracy, and that's all it is. The people who created > it and disseminated it on the Internet are only trying to steal the MPAA > members' intellectual property. > > False. CSS itself was never intended to prevent piracy, but to "keep honest > people honest". Actually, many features of the system were clearly designed to allow the movie industry to police the manufacturers of DVD drivers and players, a purpose which has nothing to do with individual viewers of DVD movies, honest or otherwise. The player keys, for instance, exist to allow the DVDCCA to turn any manufacturer's deployed players into junk, by producing new disks on which an existing player's key will no longer work. The individual movie viewers who bought those players are innocent victims in that kind of transaction, caught in the crossfire. The more I look at it, the more it looks to me like the primary purpose of CSS was in fact to regulate the manufacturers, with actual copy prevention and access control being secondary matters at best... rst From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 09:25:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25649 for dvd-discuss-outgoing; Sat, 1 Apr 2000 09:25:17 -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 JAA25646 for ; Sat, 1 Apr 2000 09:25:16 -0500 Received: from cdpage.com (bdsl231.dnvr.uswest.net [209.180.249.231]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id GAA19300 for ; Sat, 1 Apr 2000 06:26:27 -0800 (PST) Message-ID: <38E606A3.15557AA5@cdpage.com> Date: Sat, 01 Apr 2000 07:24:35 -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] Answer to #5 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 Sham Gardner wrote: > Probably not really a defence, since presumeably not all professional pirates > are outside the US, but the DMCA doesn't apply in China and DeCSS didn't > reach China by being exported from the US. A ruling in a US court would have > no impact whatsoever on professional Piracy in China or anywhere else > without a DMCA-like law. > > Sham Not all of them, but certainly most of them. The DMCA was probably not aimed at pirates, international or domestic - unless you want to change the definition of "pirates" (as the MPAA does) to "those who access copyrighted works without authorization". There are already laws in place internationally, based on the WIPO treaties, to deal with the problem of professional piracy, but the DMCA goes farther than the recommendations in WIPO, to make non-infringing copying and unauthorized access illegal. -- 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 Sat Apr 1 09:26:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25766 for dvd-discuss-outgoing; Sat, 1 Apr 2000 09:26:36 -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 JAA25763 for ; Sat, 1 Apr 2000 09:26:35 -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 JAA19058 for ; Sat, 1 Apr 2000 09:27:25 -0500 (EST) Message-Id: <4.1.20000331225331.01f3f7f0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 01 Apr 2000 09:28:01 -0500 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Defintion of Access--ACCESS IS ATOMIC In-Reply-To: References: <20000401001541.11857.qmail@web504.mail.yahoo.com> <20000401001541.11857.qmail@web504.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 The phrase was Bryan's (as were many of the other good points to the comment). We couldn't have done it without the many suggestions in discussion here and in comments on our drafts. Now let's hope it has an impact! (Reading early postings from Time Warner and the SIIA don't convince me otherwise.) --Wendy At 07:51 PM 3/31/00 -0500, rongus@tiac.net wrote: > >Bryan and Wendy get the soundbyte: > >ACCESS IS ATOMIC > >yesss! > >Seriously, you guys did a very nice job on the reply comment. >We're all proud of you (and thankful.) > > > __________no-∞-do__________ Wendy Seltzer : wendy@seltzer.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 Sat Apr 1 09:30:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25832 for dvd-discuss-outgoing; Sat, 1 Apr 2000 09:30:12 -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 JAA25829 for ; Sat, 1 Apr 2000 09:30:11 -0500 Received: from cdpage.com (bdsl231.dnvr.uswest.net [209.180.249.231]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id GAA19590 for ; Sat, 1 Apr 2000 06:31:22 -0800 (PST) Message-ID: <38E607C9.B6CFFC2D@cdpage.com> Date: Sat, 01 Apr 2000 07:29:29 -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] Answer to #5 References: <20000329225809.4998.qmail@web506.mail.yahoo.com> <4.2.2.20000330162635.00cf6600@law.harvard.edu> <38E574DF.BF12D98@cdpage.com> <200004011402.JAA01741@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: > Dana Parker writes: > > DeCSS is a tool for piracy, and that's all it is. The people who created > > it and disseminated it on the Internet are only trying to steal the MPAA > > members' intellectual property. > > > > False. CSS itself was never intended to prevent piracy, but to "keep honest > > people honest". > > Actually, many features of the system were clearly designed to allow > the movie industry to police the manufacturers of DVD drivers and > players, a purpose which has nothing to do with individual viewers of > DVD movies, honest or otherwise. The player keys, for instance, exist > to allow the DVDCCA to turn any manufacturer's deployed players into > junk, by producing new disks on which an existing player's key will no > longer work. The individual movie viewers who bought those players > are innocent victims in that kind of transaction, caught in the > crossfire. > > The more I look at it, the more it looks to me like the primary > purpose of CSS was in fact to regulate the manufacturers, with actual > copy prevention and access control being secondary matters at best... > > rst Should we add a sixth myth? "CSS is a copy protection measure only, not a means to control the manufacture of DVD players."? Seems a little arcane. -- 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 Sat Apr 1 09:32:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25876 for dvd-discuss-outgoing; Sat, 1 Apr 2000 09:32:19 -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 JAA25873 for ; Sat, 1 Apr 2000 09:32:18 -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 JAA05091 for ; Sat, 1 Apr 2000 09:33:13 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA01858; Sat, 1 Apr 2000 09:33:12 -0500 (EST) Date: Sat, 1 Apr 2000 09:33:12 -0500 (EST) Message-Id: <200004011433.JAA01858@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] The DMCA spreads its influence farther... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following was just posted to the linux-kernel development list by Linus Torvalds, : Dear Linux Users, I'm pleased to announce jointly with Microsoft(tm)(r) Corporation release of Linux 2000 Professional Enterprise. As you probably already know I'm busy with my family and I already have full-time job with Transmeta. Thus, it has been necessary for me to look for some responsible partner who would help me develop Linux. After extensive search, I have decided upon Microsoft Corporation which has been known on market for long time from their high quality software. Thus the upcoming Linux 2.4.0 will become Linux 2000(tm)(r). Pricing will be determined at later time. However, I would like to take opportunity now to remind people who have unlicensed version of Linux to delete it from hard disk and then wait until official release of Linux 2000(tm)(r) will become available. Effective April 1st 2000, midnight, all older versions of Linux are illegal under Digital Millennium Copyright Act. Linus For those who didn't pick up on the misspelled email address or the notion of Microsoft supplying quality software (both traditional tipoffs), this is obviously an April Fool's joke, and the real Linus Torvalds is almost certainly not responsible for it. He would have done a better job. But I thought folks here would get a kick out of it... From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 11:35:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28483 for dvd-discuss-outgoing; Sat, 1 Apr 2000 11:35:30 -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 LAA28480 for ; Sat, 1 Apr 2000 11:35:29 -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:2.18) with ESMTP id LAA11680 for ; Sat, 1 Apr 2000 11:36:21 -0500 (EST) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA02320; Sat, 1 Apr 2000 11:36:20 -0500 (EST) Date: Sat, 1 Apr 2000 11:36:20 -0500 (EST) Message-Id: <200004011636.LAA02320@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Answer to #5 In-Reply-To: <38E607C9.B6CFFC2D@cdpage.com> References: <20000329225809.4998.qmail@web506.mail.yahoo.com> <4.2.2.20000330162635.00cf6600@law.harvard.edu> <38E574DF.BF12D98@cdpage.com> <200004011402.JAA01741@soggy-fibers.ai.mit.edu> <38E607C9.B6CFFC2D@cdpage.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dana Parker writes: > Should we add a sixth myth? "CSS is a copy protection measure only, > not a means to control the manufacture of DVD players."? With reference to question 1.11 of the DVD FAQ as a backup on how player keys can be revoked. > Seems a little arcane. Well, which do you think is likely to be more important in monetary terms to the MPAA --- actual home copying (currently infeasible for DVDs, and not a major commercial problem for them even when it was), or the imposition of use controls on the owners of legitimate home viewers, forced down the throats of the manufacturers as conditions of the CSS license? Prof. Junger is right --- we haven't been focusing on the cartel's control over movie distribution and presentation as a whole because the plaintiffs have presented the case a different way, but it's really at the heart of the matter. (The irony is that a lot of techies, particularly those with an interest in open-source development, came in with an understanding of the restraint-of-trade issues as being important to us personally --- we're the ones whose trade is being restrained. But I'm still not sure how to make that legally relevant to the particular cases at hand, barring a countersuit...). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 1 23:34:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07134 for dvd-discuss-outgoing; Sat, 1 Apr 2000 23:34:48 -0500 Received: from dial234.roadrunner.com (dial234.cybermesa.com [209.12.75.234]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07131 for ; Sat, 1 Apr 2000 23:34:44 -0500 Received: (from paul@localhost) by dial234.roadrunner.com (8.8.7/8.8.7) id VAA00901 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Apr 2000 21:39:11 -0700 Date: Sat, 1 Apr 2000 21:39:10 -0700 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defintion of Access Message-ID: <20000401213909.A677@localhost> References: <20000401001541.11857.qmail@web504.mail.yahoo.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: <20000401001541.11857.qmail@web504.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Mar 31, 2000 at 04:15:41PM -0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Mar 31, 2000 at 04:15:41PM -0800, Bryan Taylor wrote: > > > --- Richard Hartman wrote: > > > > I looked up 'access' in the online Merriam-Webster dictionary > > > found at http://www.m-w.com/ > > > > > > One of the defintions there is "freedom or ability to obtain or > > > make use of". > > > > But that defines "access" as two different things, between > > which we need to make distinctions: aquisition & use. > > Well, it's actually the _freedom_ or the _ability_ to acquire or use, > as distinct from the act of doing so. This may seem like a quibble, but > it seems pretty important to me. > > Once you've lawfully aquired a physical copy, you've completed the > access phase, which then implies the freedom to use exists. Are you sure you didn't read this ahead of time? Come on, 'fess up. After all, you had "the _freedom_ to acquire" a copy. Nimmer et al., "Nimmer on Copyright" § 13.02[A] at 13-16. Access [A] -- The Definition of Access "Some courts have defined access as the actual viewing and knowledge of plaintiff's work by the person who composed defendant's work[note1]. It is submitted that this definition is erroneous in that it ignores the underlying policy considerations that permit proof of access (and substantial similarity) as substitutes for direct proof of copying[note2]. Just as it is virtually impossible to offer direct proof of copying, so it is often impossible for a plaintiff to offer direct evidence that defendant (or the person who composed defendant's work) actually viewed or had knowledge of plaintiff's work. [ ... ] It would seem clearer and more just in terms of the plaintiff's burden of proof[note5] to regard a reasonable opportunity to view as access in itself and not merely as creating an inference of access[note6]. This approach is consistent with what is perhaps the more prevailing definition of access, i.e. the opportunity to copy[note7]. The trier of fact may conclude that the person who created defendant's work[note8] had, but did not avail himself of, the opportunity to view, but this conclusion properly goes to the ultimate issue of copying, and not to the subordinate issue of access[note8.1]. This suggested definition of access is further consistent with the results reached in most cases. note1: Schwarz v. Universal Pictures Co., 85 F. Supp. 270 (S.D. Cal. 1945); Christie v. Harris, 47 F. Supp. 39 (S.D.N.Y. 1942), aff'd, 154 F.2d 827 2d Cir. 1946), cert. denied, 329 U.S. 734 (1946); [ ... ] Roberts v. Dahl, 168 U.S.P.Q. 428 (Ill. Cir. Ct. 1971), aff'd 286 N.E.2d 51, 174 U.S.P.Q. 517 (Ill. Ct. App. 1972). note2: See § 13.01[B] supra. note5: Even if the plaintiff is unable to prove actual viewing by the defendant, but is able to establish the reasonable opportunity to view, this should be regarded as a showing of "access" for the purposes of shifting the burden to the defendant to establish independent creation. See § 12.11[D] supra. If the burden shifts to defendant where physical possession of the manuscript is shown, notwithstanding a claim by defendant that he had forgotten its contents, or did not read it, the burden should likewise shift where the defendant denies that he ever obtained physical possession, although he had a reasonable opportunity to obtain such possession. In each case, the burden should shift because the plaintiff often can no more prove actual physical possession than he can, assuming such possession, prove the act of reading and the memory of such reading. [ ... ] note6: This definition of access was expressly adopted in Robert R. Jones Assocs., v Nino Homes, 858 F.2d 274, 277 (6th Cir. 1988)(Treatise cited); Autoskill, Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476, 1490 (10th Cir.), cert. denied, 510 U.S. 916 (1993)(Treatise cited); Iverson v. Grant 946 F. Supp. 1404, 1416 (D.S.D. 1996)(Treatise cited); [ ... ] Enco Nat'l Corp., 393 F. Supp. 157 (S.D.N.Y. 1974)(Treatise cited), aff'd mem., 515 F.2d 504 (2d Cir. 1975). note7: Smith v. Little, Brown & Co., 245 F. Supp. 451 (S.D.N.Y. 1965)(Treatise cited), aff'd, 360 F. 2d 928 (2d Cir. 1966); [ ... ] note8: Ford Motor Co. v. H & H Supply, Inc., 646 F. Supp. 975, 987 (D. Minn. 1986) (Treatise cited). note8.1: It would therefore appear erroneous to rule that multiple broadcasts over national television failed to establish access, as did Novak v. National Broadcasting Co., 752 F. Supp. 164, 170 (S.D.N.Y. 1991). Nonetheless, the result in that case can be defended in that the analysis of access was unnecessary to the court's decision, Novak v. National Broadcasting Co., 760 F. Supp. 47, 49 (S.D.N.Y. 1991). [ ... ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 13:27:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19813 for dvd-discuss-outgoing; Sun, 2 Apr 2000 13:27:42 -0400 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 NAA19803 for ; Sun, 2 Apr 2000 13:27:41 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA31548 for ; Sun, 2 Apr 2000 13:28:38 -0400 (EDT) Date: Sun, 2 Apr 2000 13:28:38 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVDCCA "faq" 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 DVDCCA has produced a faq (as of 29 March). Might be interesting reading for those who study propaganda. http://www.dvdcca.org/dvdcca/faq.html Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 14:08:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20841 for dvd-discuss-outgoing; Sun, 2 Apr 2000 14:08:33 -0400 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 OAA20838 for ; Sun, 2 Apr 2000 14:08:32 -0400 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12bpkZ-000EZg-00 for dvd-discuss@eon.law.harvard.edu; Sun, 02 Apr 2000 20:09:31 +0100 Subject: Re: [dvd-discuss] DVDCCA "faq" To: dvd-discuss@eon.law.harvard.edu Date: Sun, 2 Apr 100 20:09:30 +0100 (CET) In-Reply-To: from "Jeremy A Erwin" at Apr 2, 0 01:28:38 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 > > The DVDCCA has produced a faq (as of 29 March). Might be interesting > reading for those who study propaganda. > http://www.dvdcca.org/dvdcca/faq.html Maybe it would be a good idea to post counterarguments to some of the points in our own FAQ. Reading something like "'DeCSS' is a violation of *California's* 'trade secret' laws" (emphasis mine) makes me livid. Sham From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 15:38:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22589 for dvd-discuss-outgoing; Sun, 2 Apr 2000 15:38:53 -0400 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 PAA22586 for ; Sun, 2 Apr 2000 15:38:52 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id NAA26754 for ; Sun, 2 Apr 2000 13:39:49 -0600 Date: Sun, 2 Apr 2000 13:39:49 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" 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 You'll then end up with a "battle of the FAQs" with little to show for it but a better prepared DVDCCA legal team. Having said this, if there's a way that we could reduce some of their FAQs to absurdity, by all means we should do so. Leave the California thing alone--that's so patently absurd that if it was mentioned in court, the line of reasoning built around it would dissolve in waves of illogic. Do you seriously believe that a California Judge doesn't know what is and what isn't California Law? And do you seriously believe that the California Judge is going to take too kindly to being told an untruth about it? On Sun, 2 Apr 100, Sham Gardner wrote: > > > > The DVDCCA has produced a faq (as of 29 March). Might be interesting > > reading for those who study propaganda. > > http://www.dvdcca.org/dvdcca/faq.html > > Maybe it would be a good idea to post counterarguments to some of the points > in our own FAQ. Reading something like "'DeCSS' is a violation of > *California's* 'trade secret' laws" (emphasis mine) makes me livid. > > Sham > Sacred cows make the best burgers Who is John Galt? galt@inconnu.isu.edu, that's who!!! From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 16:23:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24022 for dvd-discuss-outgoing; Sun, 2 Apr 2000 16:23:49 -0400 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 QAA24019 for ; Sun, 2 Apr 2000 16:23:48 -0400 Received: from [38.32.11.222] (helo=ip222.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 12bqvN-0000N0-00; Sun, 2 Apr 2000 16:24:45 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Date: Sun, 02 Apr 2000 16:19:29 -0400 Message-ID: References: In-Reply-To: X-Mailer: Forte Agent 1.8/32.548 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 QAA24020 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 2 Apr 2000 13:28:38 -0400 (EDT), Jeremy A Erwin wrote: >The DVDCCA has produced a faq (as of 29 March). Might be interesting >reading for those who study propaganda. >http://www.dvdcca.org/dvdcca/faq.html That FAQ is certainly short but sweet. (at least a change from the usual Frequently Unanswered Questions.) quoting... "Already, the sale and distribution of new, high quality DVD audio technology has been delayed because of potential threats to the codes that protect movies, music and other content from being illegally copied and distributed. " Gee, this delay couldn't also be attributed to marketing strategy sessions on how to inform DVD owners that, not only will their players not play any DVD audio, but they will also be useless with any CSS2 movies as well. (Then two years down the road we can all await CSS3.) Jim Taylor begs the industry to support DVD audio on current players. Do we have any evidence that they will? What assuring words does the DVDCCA have for current supporters of the format? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 17:36:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26355 for dvd-discuss-outgoing; Sun, 2 Apr 2000 17:36:09 -0400 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 RAA26352 for ; Sun, 2 Apr 2000 17:36:08 -0400 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 OAA26782 for ; Sun, 2 Apr 2000 14:37:06 -0700 (PDT) Received: from localhost (smb23@localhost) by lennon.csufresno.edu (8.9.3/8.9.3) with SMTP id OAA28268 for ; Sun, 2 Apr 2000 14:37:04 -0700 (PDT) Date: Sun, 2 Apr 2000 14:37:03 -0700 (PDT) From: Steve M Bibayoff To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" 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 Sun, 2 Apr 2000, Jeremy A Erwin wrote: > The DVDCCA has produced a faq (as of 29 March). Might be interesting > reading for those who study propaganda. > http://www.dvdcca.org/dvdcca/faq.html > Jeremy Erwin A quick question, would any of these stayments in this faq ("'DeCSS' is a violation of California's 'trade secret' laws","'DeCSS' was also posted. Using the stolen elements", and others) be grounds for a libel suit? I don't think this staments would be to hard to prove wrong, but proving that someone was harmed by them might be. just a thought Steve From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 18:03:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA26834 for dvd-discuss-outgoing; Sun, 2 Apr 2000 18:03:42 -0400 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 SAA26831 for ; Sun, 2 Apr 2000 18:03:41 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id SAA26864 for ; Sun, 2 Apr 2000 18:04:39 -0400 (EDT) Date: Sun, 2 Apr 2000 18:04:39 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" 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 Sun, 2 Apr 2000, Steve M Bibayoff wrote: > On Sun, 2 Apr 2000, Jeremy A Erwin wrote: > > The DVDCCA has produced a faq (as of 29 March). Might be interesting > > reading for those who study propaganda. > > http://www.dvdcca.org/dvdcca/faq.html > > Jeremy Erwin > A quick question, would any of these stayments in this faq ("'DeCSS' is a > violation of California's 'trade secret' laws","'DeCSS' was also posted. > Using the stolen elements", and others) be grounds for a libel suit? I > don't think this staments would be to hard to prove wrong, but proving > that someone was harmed by them might be. Beats me. Some of the language is quite strange. "Does the First Amendment (Right of Free Speech) protect the right to post DeCSS on the Internet? No. The First Amendment does not protect the theft and distribution of intellectual property. Much like a copyrighted book cannot legally be scanned and posted on the Internet, protected software and encryption code cannot either. " I mean, everyone knows that if you own the copyright on the book, or if those rights have been expressly given to you," you can post to your heart's content. Interestingly "What is CSS? The Content Scramble System (CSS) is the protection system that has enabled the owners of movie content to provide consumers access to high quality DVD movies for home viewing on their video systems and computers. CSS prevents movies from being illegally duplicated, protecting the intellectual property of the manufacturers, producers and writers from theft. CSS is a two-part system for which manufacturers of both the movie content (discs) and hardware or software (players) purchase licenses. The information on DVD discs is encrypted. The DVD players - either a computer drive or a home video player - have technology to 'decrypt' the information so it can be viewed. CSS is critical to DVD. " falsely equates the dvd drive ("computer drive") with a DVD player. If a DVD-Rom could decrypt CSS on it's own, we wouldn't be in this mess. It's gaffes like this that made me think that this faq was written by a non-lawyer. I don't think that this document is worth more than a few chuckles. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 19:28:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA27832 for dvd-discuss-outgoing; Sun, 2 Apr 2000 19:28:36 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA27829 for ; Sun, 2 Apr 2000 19:28:35 -0400 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Sun, 2 Apr 2000 19:30:42 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C00@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Sun, 2 Apr 2000 19:30:31 -0400 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 think you should not dismiss it so easily. The arguments in the document are a restating of the core popular arguments put forth against DeCSS, and represents continuing spin. A few points: 1. Over and over again, the comment is made that movie producers would not put their works on DVD without a CSS-like system in place. I've never heard any direct evidence of this, has anyone else? Could it be that movie producers were sold a bill of goods on CSS, that they were promised "copy proof" media? I think there are two huge reasons for the MPAA taking action: - Embarrassment that their system could be attacked so easily - Establishing teeth and fangs that will persuade everyone to continue to use CSS even if someone comes up with a superior system 2. The CSS system requires the acceptance of a license, so it isn't all hardware and software. The contract limits certain features of players. The admission bolsters arguments made here that the primary goal of CSS is to control player manufacturers. Here is a doomsday scenario. What if when a newer DVD format comes out, the MPAA decides to revoke all player keys and force everyone to buy again? I have this huge problem with interpreting the rights of copyright holders as expansive like the MPAA is suggesting. What if I made a movie and wanted to sell it only to long haired blondes? What if I put a hair length and color sensor on the media so it could only be played after a long blonde hair was submitted evidence? What if them a bunch of programmers figured out how to replace the sensor to it would play for anyone? I seriously doubt the circumvention would be held illegal under the DMCA. 3. Winning the PR battle is important. The ruling of Judge Harrington in the recent Cyber Patrol case is a great example why -- the judge let popular spin rather than legal arguments control his decision making. Point out that nobody should monitor or control what you view or how you view it, and that the law must protect copyright, and rights of copyright owners, but must never protect corporate marketing policies. As an example, look at the soda industry. You pay huge differences for soda depending on how and when you buy it. The government makes no effort to legally defend all the different prices for soda. Rather, soda companies are free to market their products in numerous venues. The market for soda is a healthy competitive market. --- That reminds me, am I the only person who remembers efforts to control videotape players and media? Evidence of this would do a lot to debunk the argument that home analog copying is tolerated because it isn't a perfect copy. -----Original Message----- From: Jeremy A Erwin [mailto:jerwin@osf1.gmu.edu] Sent: Sunday, April 02, 2000 6:05 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" It's gaffes like this that made me think that this faq was written by a non-lawyer. I don't think that this document is worth more than a few chuckles. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 20:15:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28369 for dvd-discuss-outgoing; Sun, 2 Apr 2000 20:15:30 -0400 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 UAA28366 for ; Sun, 2 Apr 2000 20:15:29 -0400 Received: from cdpage.com (gdsl21.dnvr.uswest.net [209.180.254.21]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id RAA23079 for ; Sun, 2 Apr 2000 17:16:43 -0700 (PDT) Message-ID: <38E7E279.C27DC4DD@cdpage.com> Date: Sun, 02 Apr 2000 18:14:49 -0600 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] DVDCCA "faq" References: <611C0CE12596D311B466009027D5E7591E4C00@host100.56jfk.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 Leland Ray wrote: > I think you should not dismiss it so easily. > > The arguments in the document are a restating of the core popular arguments > put forth against DeCSS, and represents continuing spin. > > A few points: > > 1. Over and over again, the comment is made that movie producers would not > put their works on DVD without a CSS-like system in place. I've never heard > any direct evidence of this, has anyone else? What kind of direct evidence would you like? I've read and heard many movie producers say, and hardware manufacturers confirm, that they would not release content without something like CSS. > Could it be that movie producers were sold a bill of goods on CSS, that they > were promised "copy proof" media? > > I think there are two huge reasons for the MPAA taking action: > > - Embarrassment that their system could be attacked so easily > - Establishing teeth and fangs that will persuade everyone to continue > to use CSS even if someone comes up with a superior system They were not promised copy proof media. They were told the truth: that no form of copy protection is unbreakable. If you can access (view) it, you can copy it. However, they may have reasoned that CSS would work for the short term. It was always the MPAA's intent to back up CSS with legislation - that's why we have the DMCA. It could have been worse - they originally wanted legislation called the VHRA, which IIRC, was included in HR 2441. see http://www.riaa.com/intprop/releases/video.htm http://emedialive.com/cdrompro/0796CP/news7.html#dvd http://www.cni.org/Hforums/roundtable/1996-01/0235.html > > > 2. The CSS system requires the acceptance of a license, so it isn't all > hardware and software. The contract limits certain features of players. > The admission bolsters arguments made here that the primary goal of CSS is > to control player manufacturers. > > Here is a doomsday scenario. What if when a newer DVD format comes out, the > MPAA decides to revoke all player keys and force everyone to buy again? Only the DVD CCA can do that. > -- 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 Sun Apr 2 21:17:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29365 for dvd-discuss-outgoing; Sun, 2 Apr 2000 21:17:39 -0400 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 VAA29362 for ; Sun, 2 Apr 2000 21:17:38 -0400 Received: (qmail 31193 invoked from network); 3 Apr 2000 01:15:38 -0000 Received: from ns1.filetron.com (httpd@206.171.92.1) by mail.filetron.com with SMTP; 3 Apr 2000 01:15:38 -0000 Received: (from httpd@localhost) by ns1.filetron.com (8.8.7/8.8.7) id SAA09665; Sun, 2 Apr 2000 18:19:19 -0700 Date: Sun, 2 Apr 2000 18:19:19 -0700 Message-Id: <200004030119.SAA09665@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] Temporary Leave of Absence Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm going to be off the list for a few weeks. I need to get ready for a school transfer, some business opportunities, etc. I'll be rejoining soon after. Unfortunately responsibilities and the absolutely disgusting tactics that have been used by Mattel, MPAA, et al lately make me quite unable to keep up or think straight. Good luck, 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 Apr 2 22:20:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32280 for dvd-discuss-outgoing; Sun, 2 Apr 2000 22:20:35 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA32277 for ; Sun, 2 Apr 2000 22:20:34 -0400 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Sun, 2 Apr 2000 22:22:42 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C01@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Sun, 2 Apr 2000 22:22:37 -0400 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 Dana, thanks for the note and the documents. I do stand corrected as to the direct evidence -- I have not seen such quotes, but I will defer to your understanding that they exist. -----Original Message----- From: Dana Parker [mailto:dparker@cdpage.com] Sent: Sunday, April 02, 2000 8:15 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" What kind of direct evidence would you like? I've read and heard many movie producers say, and hardware manufacturers confirm, that they would not release content without something like CSS. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 2 22:52:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02253 for dvd-discuss-outgoing; Sun, 2 Apr 2000 22:52:37 -0400 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 WAA02250 for ; Sun, 2 Apr 2000 22:52:36 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA15440 for dvd-discuss@eon.law.harvard.edu; Sun, 2 Apr 2000 19:49:19 -0700 Date: Sun, 2 Apr 2000 19:49:18 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000402194918.G23385@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 Sun, Apr 02, 2000 at 06:04:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A Erwin writes: > On Sun, 2 Apr 2000, Steve M Bibayoff wrote: > > > On Sun, 2 Apr 2000, Jeremy A Erwin wrote: > > > The DVDCCA has produced a faq (as of 29 March). Might be interesting > > > reading for those who study propaganda. > > > http://www.dvdcca.org/dvdcca/faq.html > > > Jeremy Erwin > > A quick question, would any of these stayments in this faq ("'DeCSS' is a > > violation of California's 'trade secret' laws","'DeCSS' was also posted. > > Using the stolen elements", and others) be grounds for a libel suit? I > > don't think this staments would be to hard to prove wrong, but proving > > that someone was harmed by them might be. > > Beats me. Some of the language is quite strange. > > "Does the First Amendment (Right of Free Speech) protect the right to post > DeCSS on the Internet? > > No. The First Amendment does not protect the theft and distribution > of intellectual property. Much like a copyrighted book cannot legally be > scanned and posted on the Internet, protected software and encryption code > cannot either. " They're glossing over a lot here. Copyright and trade secret are not at all the same thing. The First Amendment implies _obvious_ limitations on the power of anyone to make others help preserve the secrecy of trade secrets. If a trade secret is lost through a legitimate means -- not misappropriation -- then its "trade secret" status is worth very little. Trade secret is a kind of intellectual property which can be lost without the consent or action of the owner, and even without any litigation. "Our trade secret was lost" does not imply "our trade secret was misappropriated", and in fact "our trade secret was misappropriated" does not even imply "our trade secret was lost". The DVD CCA's FAQ claims that CSS was _misappropriated_, but does not prove it. The convention wisdom seems to be that "Jon Johansen reverse engineered the Xing player and wrote DeCSS", which is wrong in _so many ways_, as it turns out, that it's not even funny. By now I would be really surprised if even Jon knew just how what appeared to be the Xing key got into the old version of the program he was releasing. By now there have been rumors suggesting that what MoRE members reverse-engineered was not even the Xing player but _another_ DeCSS-like program, itself written by other anonymous people, and released with no source code. There is no public evidence that anyone in particular reverse engineered the Xing player, except that the DVD CCA argues that someone or other did, and knew it was a license violation, which is a copyright violation, which is misappropriation, and then all the people who got the information thereafter knew it was misappropriated, too -- an interesting argument, and not one which is even mentioned, much less supported, in the FAQ. > falsely equates the dvd drive ("computer drive") with a DVD player. If a > DVD-Rom could decrypt CSS on it's own, we wouldn't be in this mess. Hmmm, but it would have to give analog output with Macrovision, or digital output with HDCP or something. Someone decided that letting computers play DVDs would be pretty neat. As David Wagner pointed out, that was a very peculiar decision from the point of view of security. -- 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 Apr 3 03:46:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA06323 for dvd-discuss-outgoing; Mon, 3 Apr 2000 03:46:30 -0400 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 DAA06320 for ; Mon, 3 Apr 2000 03:46:28 -0400 Received: from gara0013 by rz03.FH-Karlsruhe.DE with local (Exim 3.03 #2) id 12c2W4-000INA-00 for dvd-discuss@eon.law.harvard.edu; Mon, 03 Apr 2000 09:47:24 +0100 Subject: Re: [dvd-discuss] DVDCCA "faq" To: dvd-discuss@eon.law.harvard.edu Date: Mon, 3 Apr 100 09:47:17 +0100 (CET) In-Reply-To: from "John Galt" at Apr 2, 0 01:39:49 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 > Do you seriously believe that a > California Judge doesn't know what is and what isn't California Law? And > do you seriously believe that the California Judge is going to take too > kindly to being told an untruth about it? It's not the judge that's going to be reading the FAQ, it's the public. I doubt many of them would take too kindly to being told these kinds of lies either, but unlike the judge most of them will it pointing out to them. Sham From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 11:35:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17038 for dvd-discuss-outgoing; Mon, 3 Apr 2000 11:35:58 -0400 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 LAA17035 for ; Mon, 3 Apr 2000 11:35:46 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 08:37:07 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A3E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Defintion of Access Date: Mon, 3 Apr 2000 08:37:00 -0700 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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > > > --- Richard Hartman wrote: > > > > I looked up 'access' in the online Merriam-Webster dictionary > > > found at http://www.m-w.com/ > > > > > > One of the defintions there is "freedom or ability to obtain or > > > make use of". > > > > But that defines "access" as two different things, between > > which we need to make distinctions: aquisition & use. > > Well, it's actually the _freedom_ or the _ability_ to acquire or use, > as distinct from the act of doing so. This may seem like a > quibble, but > it seems pretty important to me. > > Once you've lawfully aquired a physical copy, you've completed the > access phase, which then implies the freedom to use exists. > ... except when an "access control" mechanism is in place, which is the whole problem we are trying to define! We need to somehow establish that access is controlled only through point-of-sale, and any attempt to impose additional access controls after that point -- especially with no notice of additional requirements for access (or use) on the packaging -- is somehow a violation. To my mind there is an contract (implied, if not explicit) at point of sale that I have been granted permission to view the work ... at least subject to the restrictions on the package, which bars me from public presentations but allows private presentations. If there are -any- other restrictions on me past that point, then something is wrong. Unfortunately I don't know enough about the law to back this opinion up. -- -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 Apr 3 12:15:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18699 for dvd-discuss-outgoing; Mon, 3 Apr 2000 12:15:51 -0400 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 MAA18696 for ; Mon, 3 Apr 2000 12:15:50 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 09:17:21 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A3F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Mon, 3 Apr 2000 09:17:12 -0700 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 Can somebody post a link to a page with the "California Trade Secret Law" (or better yet, a summary of same)? It was my understanding that the only protection a "Trade Secret" had was keeping it secret. Moreover, the FAQ's claim that the -code- for the algorithm was stolen would require proof that their systems were broken into, wouldn't it? Reverse engineering the code is -not- the same as stealing the code. It is an independant development effort producing a device that functions the same as the original ... but it is extremely unlikely that the code produced by this effort would match the original code. No two programmer's styles are the same. Also: it claims that without CSS, perfect copies could be made & distributed. Well ... can't they be made even -with- CSS? If I take a bit-for-bit copy of the -scrambled- content and pop it into a licensed DVD player, won't it play? I believe there is some minor issue w/ special sectors, but those could be duplicated as well. In other words, CSS does not, and CAN not prevent perfect duplication. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Steve M Bibayoff [mailto:smb23@csufresno.edu] > Sent: Sunday, April 02, 2000 2:37 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > On Sun, 2 Apr 2000, Jeremy A Erwin wrote: > > > The DVDCCA has produced a faq (as of 29 March). Might be interesting > > reading for those who study propaganda. > > http://www.dvdcca.org/dvdcca/faq.html > > Jeremy Erwin > > A quick question, would any of these stayments in this faq > ("'DeCSS' is a > violation of California's 'trade secret' laws","'DeCSS' was > also posted. > Using the stolen elements", and others) be grounds for a libel suit? I > don't think this staments would be to hard to prove wrong, but proving > that someone was harmed by them might be. > > just a thought > > Steve > From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 12:19:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18854 for dvd-discuss-outgoing; Mon, 3 Apr 2000 12:19:36 -0400 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 MAA18851 for ; Mon, 3 Apr 2000 12:19:33 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 09:21:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A40@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Regional controls in DVD as antitrust violation s Date: Mon, 3 Apr 2000 09:20:54 -0700 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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] ... > If the rulings of law in the Microsoft case come out and declare that > that Microsoft broke the law, then it would be a good point to make > that 'authorized' players contribute to the lock-in effect by stifling > the alternatives. Conversely, if Microsoft had made the integration of Explorer into the Operating System a "trade secret", protected by law, they wouldn't be in trouble now? 1/2 :-) -- -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 Apr 3 12:50:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19433 for dvd-discuss-outgoing; Mon, 3 Apr 2000 12:50:54 -0400 Received: from dwaal.net (dwaal.net [216.122.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19430 for ; Mon, 3 Apr 2000 12:50:52 -0400 Received: from tser ([194.151.142.229]) by dwaal.net (8.9.3/8.9.3) with SMTP id SAA05320 for ; Mon, 3 Apr 2000 18:51:50 +0200 (CEST) From: "tser" To: Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Mon, 3 Apr 2000 18:36:54 +0200 Message-ID: <000001bf9d8a$d2ca1550$97a1a8c0@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: <5A8391CA2D9ED311AFAA080009D982B10B1A3F@mail2.onetouch.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 >>Even stronger, don't you believe, people working at dvd press fabrics spaces actually already >>not have those kind of "illegal" copies ? >> >>Also: it claims that without CSS, perfect copies >>could be made & distributed. correctly, if you steal the "Glass" masters, you can also do a perfect 1 to 1 copy. Moreover, if you pay the folks who are pressing the orginal dvd's "some aditional fee" they'r more then willing to to that. Even stronger, don't you believe, people working at dvd press fabrics spaces actually already >>not have those kind of "illegal" copies ? if we could proof the above fact, we'f proven that there are already illegal copies hanging around. *disapears in the myst* - Reinder From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 13:05:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20540 for dvd-discuss-outgoing; Mon, 3 Apr 2000 13:05:28 -0400 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 NAA20537 for ; Mon, 3 Apr 2000 13:05:27 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA10238 for ; Mon, 3 Apr 2000 13:06:25 -0400 (EDT) Date: Mon, 3 Apr 2000 13:06:21 -0400 (EDT) From: Jeremy A Erwin To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A3F@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 On Mon, 3 Apr 2000, Richard Hartman wrote: > Can somebody post a link to a page with the > "California Trade Secret Law" (or better yet, > a summary of same)? Cal Civ Code 3426 (1999) CIVIL CODE SECTION 3426-3426.11 3426. This title may be cited as the Uniform Trade Secrets Act. 3426.1. As used in this title, unless the context requires otherwise: (a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means. (b) "Misappropriation" means: (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. (c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity. (d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 3426.2. (a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation. (b) If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited. (c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. 3426.3. (a) A complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss. (b) If neither damages nor unjust enrichment caused by misappropriation are provable, the court may order payment of a reasonable royalty for no longer than the period of time the use could have been prohibited. (c) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subdivision (a) or (b). 3426.4. If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney's fees to the prevailing party. 3426.5. In an action under this title, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. 3426.6. An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim. 3426.7. (a) Except as otherwise expressly provided, this title does not supersede any statute relating to misappropriation of a trade secret, or any statute otherwise regulating trade secrets. (b) This title does not affect (1) contractual remedies, whether or not based upon misappropriation of a trade secret, (2) other civil remedies that are not based upon misappropriation of a trade secret, or (3) criminal remedies, whether or not based upon misappropriation of a trade secret. (c) This title does not affect the disclosure of a record by a state or local agency under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Any determination as to whether the disclosure of a record under the California Public Records Act constitutes a misappropriation of a trade secret and the rights and remedies with respect thereto shall be made pursuant to the law in effect before the operative date of this title. 3426.8. This title shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this title among states enacting it. 3426.9. If any provision of this title or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the title which can be given effect without the invalid provision or application, and to this end the provisions of this title are severable. 3426.10. This title does not apply to misappropriation occurring prior to January 1, 1985. If a continuing misappropriation otherwise covered by this title began before January 1, 1985, this title does not apply to the part of the misappropriation occurring before that date. This title does apply to the part of the misappropriation occurring on or after that date unless the appropriation was not a misappropriation under the law in effect before the operative date of this title. 3426.11. Notwithstanding subdivision (b) of Section 47, in any legislative or judicial proceeding, or in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, the voluntary, intentional disclosure of trade secret information, unauthorized by its owner, to a competitor or potential competitor of the owner of the trade secret information or the agent or representative of such a competitor or potential competitor is not privileged and is not a privileged communication for purposes of Part 2 (commencing with Section 43) of Division 1. This section does not in any manner limit, restrict, impair, or otherwise modify either the application of the other subdivisions of Section 47 to the conduct to which this section applies or the court' s authority to control, order, or permit access to evidence in any case before it. Nothing in this section shall be construed to limit, restrict, or otherwise impair, the capacity of persons employed by public entities to report improper government activity, as defined in Section 10542 of the Government Code, or the capacity of private persons to report improper activities of a private business. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 13:41:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27146 for dvd-discuss-outgoing; Mon, 3 Apr 2000 13:41:19 -0400 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 NAA27143 for ; Mon, 3 Apr 2000 13:41:18 -0400 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 NAA25294 for ; Mon, 3 Apr 2000 13:42:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA12543; Mon, 3 Apr 2000 13:42:16 -0400 (EDT) Date: Mon, 3 Apr 2000 13:42:16 -0400 (EDT) Message-Id: <200004031742.NAA12543@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" In-Reply-To: References: <5A8391CA2D9ED311AFAA080009D982B10B1A3F@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A. Erwin quotes the California civil code: > CIVIL CODE SECTION 3426-3426.11 3426. This > title may be cited as the Uniform Trade Secrets Act. 3426.1. As used in > this title, unless the context requires otherwise: > (a) "Improper means" includes theft, bribery, misrepresentation, breach > or inducement of a breach of a duty to maintain secrecy, or espionage > through electronic or other means. Reverse engineering or independent > derivation alone shall not be considered improper means. > (b) "Misappropriation" means: > (1) Acquisition of a trade secret of another by a person who knows or > has reason to know that the trade secret was acquired by improper means; > or > (2) Disclosure or use of a trade secret of another without express > or implied consent by a person who [knowingly acquires it, directly or > indirectly, through improper means, including breach of a duty to > maintain secrecy by a third party] I think those are most pertinent bits to the California case, though beware my summary of (b)(2). What the DVDCCA is alleging in California is that the CSS algorithms were originally acquired by improper means, viz., quoting the complaint: 47. On information and belief, this proprietary information was obtained by willfully "hacking" and/or improperly reverse engineering software created by CSS licensee Xing Technology Corporation ("Xing"). Xing's software is and was licensed to users under a license agreement which specifically prohibits reverse engineering. Note the implications that whoever performed the reverse engineering was bound by the license agreement, including the clause mandating the duty to maintain secrecy, which seems (to my non-lawyerly eyes) to require that: 1) Shrink-wrap license agreements like those for the Xing player are binding in the jurisdiction where the reverse engineering was performed. (Hmmm... is it shrink-wrap or click-wrap?) 2) Clauses within those license agreements which bar reverse engineering are likewise legal and binding in the relevant jurisdiction. Complicating life still further is the vexed question of *finding* the relevant jurisdiction --- it's clearly not the U.S.; Johansen posted the thing originally in Norway, but he claimed to be relaying work performed by unnamed(?) parties in Germany. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 13:49:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27439 for dvd-discuss-outgoing; Mon, 3 Apr 2000 13:49:09 -0400 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 NAA27436 for ; Mon, 3 Apr 2000 13:49:07 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 10:50:35 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Mon, 3 Apr 2000 10:50:29 -0700 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 Well, geez. Even if we take their citation of this law at face value (and others have question whether a California law has any bearing on this situation), it's right there in practically the first paragraph: > (a) "Improper means" includes theft, bribery, > misrepresentation, breach > or inducement of a breach of a duty to maintain secrecy, or espionage > through electronic or other means. Reverse engineering or independent > derivation alone shall not be considered improper means. This means that they MUST prove their case if they want to say the code was stolen. Right there it says that reverse engineering shall not be considered improper means! Now ... before I jump on this too hastily, could somebody please confirm that DeCSS -was- produced solely through reverse engineering, and nobody involved had access to the original CSS code? I've heard their statement that the code was stolen many times ... and it's there in their FAQ ... but have they actually PROVEN this? -- -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 Apr 3 14:05:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27923 for dvd-discuss-outgoing; Mon, 3 Apr 2000 14:05:26 -0400 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 OAA27920 for ; Mon, 3 Apr 2000 14:05:24 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA16088 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 11:02:08 -0700 Date: Mon, 3 Apr 2000 11:02:06 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403110206.K23385@cty-alum.org> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Apr 03, 2000 at 10:50:29AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Well, geez. Even if we take their citation of > this law at face value (and others have question > whether a California law has any bearing on this > situation), it's right there in practically the > first paragraph: > > > (a) "Improper means" includes theft, bribery, > > misrepresentation, breach > > or inducement of a breach of a duty to maintain secrecy, or espionage > > through electronic or other means. Reverse engineering or independent > > derivation alone shall not be considered improper means. > > This means that they MUST prove their case if they want > to say the code was stolen. Right there it says that > reverse engineering shall not be considered improper means! > > Now ... before I jump on this too hastily, could somebody > please confirm that DeCSS -was- produced solely through reverse > engineering, and nobody involved had access to the original CSS > code? That would require knowing who wrote DeCSS. :-) The problem is that the Xing player license (like all licensed players' licenses) purports to prohibit reverse engineering. There is a clear argument, more or less, that, if this is legally valid and binding upon the person doing reverse engineering, then that particular act of reverse engineering _was_ "improper means". I haven't looked at that part of the complaint in a while, but I see an argument here that, because the license prohibits reverse engineering, all licensees have accepted (and, by using the player software, indicated their acceptance of) a "duty to maintain secrecy"! -- 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 Apr 3 14:23:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA28243 for dvd-discuss-outgoing; Mon, 3 Apr 2000 14:23:03 -0400 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 OAA28240 for ; Mon, 3 Apr 2000 14:23:03 -0400 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 OAA00889 for ; Mon, 3 Apr 2000 14:24:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA12885; Mon, 3 Apr 2000 14:24:02 -0400 (EDT) Date: Mon, 3 Apr 2000 14:24:02 -0400 (EDT) Message-Id: <200004031824.OAA12885@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > > (a) "Improper means" includes theft, bribery, > > misrepresentation, breach > > or inducement of a breach of a duty to maintain secrecy, or espionage > > through electronic or other means. Reverse engineering or independent > > derivation alone shall not be considered improper means. > > This means that they MUST prove their case if they want > to say the code was stolen. Right there it says that > reverse engineering shall not be considered improper means! But a "breach of duty to maintain secrecy" *is* improper means, and that's what they're alleging, on the basis of the click-wrap Xing license agreement (it is click-wrap, not shrink-wrap, according to the California case exhibits), which quoting the complaint "specifically prohibits reverse engineering". Which sets my brain spinning on the following *dangerous and probably faulty* line of reasoning: 1) The license bars reverse engineering. 2) It does not specifically bar dissemination of the results of reverse engineering (though it does bar dissemination of the program itself, or any component)[1]. 3) There was thus no obligation to maintain secrecy. 4) The best they can do is sue for breach of contract, and recover their 50 bucks from the unknown Germans. Having articulated this line of argument, let me hasten to add that I myself don't buy it --- I rather suspect that in court (though I'm not a lawyer and certainly not a student of California law!) that if the acquisition of information in breach of contract is improper, then dissemination of that information would be considered doubly improper, and assertions to the contrary based on hair splitting like the preceding would be waved away as de minimis. (This is as opposed to the close readings that techies do in the interpretation of technical standards, where reasoning on the basis of analogy and intent is improper practice, and the hair-splitting is de rigeur). BTW, on the jurisdictional question I keep harping on, I just noticed this, in clause 10 of the license: "This Agreement shall be governed by and construed in accordance with the laws of the State of Calfiornia and by U.S. federal law relating to intellectual property in general, and to copyrights, patents, and trademarks in particular. You agree to submit all disputes to the exclusive jurisdiction of courts or tribunals located within the territorial boundaries of the U.S." Which may still leave the question of whether a click-wrap dialog box creates an enforcable contract in the first place.... rst [1] From the Xing license agreement: 5. The Product in source code form ins confidential and Xing's protected trade secret, and you may not attempt to reverse engineer, decompile, disassemble or otherwise decipher any portion of the Product. Reproduction and/or redistribution of any portion of the Product is specifically prohibited in the absence of a separate written agreement with Xing. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 14:53:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30170 for dvd-discuss-outgoing; Mon, 3 Apr 2000 14:53:20 -0400 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 OAA30167 for ; Mon, 3 Apr 2000 14:53:19 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 7207276F3; Mon, 3 Apr 2000 13:54:49 -0500 (CDT) Date: Mon, 3 Apr 2000 13:54:49 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403135449.A2073@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <200004031824.OAA12885@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Apr 03, 2000 at 02:24:02PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 02:24:02PM -0400, Robert S. Thau wrote: > Richard Hartman writes: > > > (a) "Improper means" includes theft, bribery, > > > misrepresentation, breach > > > or inducement of a breach of a duty to maintain secrecy, or espionage > > > through electronic or other means. Reverse engineering or independent > > > derivation alone shall not be considered improper means. > > > > This means that they MUST prove their case if they want > > to say the code was stolen. Right there it says that > > reverse engineering shall not be considered improper means! > > But a "breach of duty to maintain secrecy" *is* improper means, and > that's what they're alleging, on the basis of the click-wrap Xing > license agreement (it is click-wrap, not shrink-wrap, according to the > California case exhibits), which quoting the complaint "specifically > prohibits reverse engineering". > > Which sets my brain spinning on the following *dangerous and probably > faulty* line of reasoning: > > 1) The license bars reverse engineering. > 2) It does not specifically bar dissemination of the results of > reverse engineering (though it does bar dissemination of the > program itself, or any component)[1]. > 3) There was thus no obligation to maintain secrecy. > 4) The best they can do is sue for breach of contract, and > recover their 50 bucks from the unknown Germans. #2 is wrong. It is illegal to disseminate information you know is a trade secret that was obtained illegally. The trick to this is that the DVD CCA needs to show that the defendants in the case all knew that DeCSS was illegally reverse engineered. Because, for a long time, nobody considered that reverse engineering was against the license, this will be very hard for them to do. As long as the they thought it was ligitimately done, they cannot guilty of trade secret violations. > Having articulated this line of argument, let me hasten to add that I > myself don't buy it --- I rather suspect that in court (though I'm not > a lawyer and certainly not a student of California law!) that if the > acquisition of information in breach of contract is improper, then > dissemination of that information would be considered doubly improper, > and assertions to the contrary based on hair splitting like the > preceding would be waved away as de minimis. (This is as opposed to > the close readings that techies do in the interpretation of technical > standards, where reasoning on the basis of analogy and intent is > improper practice, and the hair-splitting is de rigeur). I think you see what I was saying above, mostly. > BTW, on the jurisdictional question I keep harping on, I just noticed > this, in clause 10 of the license: "This Agreement shall be governed > by and construed in accordance with the laws of the State of > Calfiornia and by U.S. federal law relating to intellectual property > in general, and to copyrights, patents, and trademarks in particular. > You agree to submit all disputes to the exclusive jurisdiction of > courts or tribunals located within the territorial boundaries of the > U.S." Yeah, thats probably why they're in CA, though I don't know that the Xing license has come up yet in the case (sombody correct me if I'm wrong). I don't know the evidence in the CA case too well. It would seem to me that the DVD CCA would have a hard time proving that the creation of DeCSS specifically violated any license agreements because the actual creation of it is still something of a mystery. I would hope that because of all the rumors that had been going around that it was a real reverse engineer of the Xing player that the burden of proof would be on the DVD CCA to prove misappropriation. > Which may still leave the question of whether a click-wrap dialog box > creates an enforcable contract in the first place.... This is a whole other mess, which probably won't be dealt with until appeal, if then. Certainly nobody wants to stake the whole case on it. -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: What you don't know can hurt you, only you won't know it. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 15:25:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA30789 for dvd-discuss-outgoing; Mon, 3 Apr 2000 15:25:29 -0400 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 PAA30786 for ; Mon, 3 Apr 2000 15:25:29 -0400 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 PAA08849 for ; Mon, 3 Apr 2000 15:26:29 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA13244; Mon, 3 Apr 2000 15:26:28 -0400 (EDT) Date: Mon, 3 Apr 2000 15:26:28 -0400 (EDT) Message-Id: <200004031926.PAA13244@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" In-Reply-To: <20000403135449.A2073@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <20000403135449.A2073@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: > #2 is wrong. It is illegal to disseminate information you know is > a trade secret that was obtained illegally. The trick to this is > that the DVD CCA needs to show that the defendants in the case all > knew that DeCSS was illegally reverse engineered. Because, for a > long time, nobody considered that reverse engineering was against > the license, this will be very hard for them to do. As long as the > they thought it was ligitimately done, they cannot guilty of trade > secret violations. Well, the license itself is pretty explicit about that. So, I guess the question is: if some Germans misappropriate a Xing trade secret, and pass it along to a Norwegian who forwards it to third parties, then do the Norweigian or the third parties "have reason to know" the terms of the Xing license? > Yeah, thats probably why they're in CA, though I don't know that the Xing > license has come up yet in the case (sombody correct me if I'm wrong). I've been quoting it from one of the exhibits in the case, available from the EFF archive at: http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000114-pi-eddy-dec/index.html (The document itself is only available as scanned GIFs). > It would seem to me that the DVD CCA would have a hard time proving > that the creation of DeCSS specifically violated any license > agreements because the actual creation of it is still something of > a mystery. I would hope that because of all the rumors that had > been going around that it was a real reverse engineer of the Xing > player that the burden of proof would be on the DVD CCA to prove > misappropriation. Well, I guess the DVDCCA's claim would be that you can't properly acquire the Xing player at all, for reverse engineering or any other purposes, without agreeing to the license agreement, which is why I think the click-wrap business is relevant. I completely agree that it's a mess. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 15:50:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31383 for dvd-discuss-outgoing; Mon, 3 Apr 2000 15:50:30 -0400 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 PAA31380 for ; Mon, 3 Apr 2000 15:50:28 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA16148 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 14:51:21 -0500 Date: Mon, 3 Apr 2000 14:51:21 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403145121.A16131@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <20000403135449.A2073@arh1176.urh.uiuc.edu> <200004031926.PAA13244@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: <200004031926.PAA13244@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Apr 03, 2000 at 03:26:28PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 03:26:28PM -0400, Robert S. Thau wrote: > Steven Barker writes: > > #2 is wrong. It is illegal to disseminate information you know is > > a trade secret that was obtained illegally. The trick to this is > > that the DVD CCA needs to show that the defendants in the case all > > knew that DeCSS was illegally reverse engineered. Because, for a > > long time, nobody considered that reverse engineering was against > > the license, this will be very hard for them to do. As long as the > > they thought it was ligitimately done, they cannot guilty of trade > > secret violations. > > Well, the license itself is pretty explicit about that. So, I guess > the question is: if some Germans misappropriate a Xing trade secret, > and pass it along to a Norwegian who forwards it to third parties, > then do the Norweigian or the third parties "have reason to know" the > terms of the Xing license? Isn't it worth fighting the good fight here, to try to get the whole shrink-wrap or click-wrap reverse-engineering prohibition tossed? I mean, it's great that the juridictional issues and the chain of who-wrote-what code makes DVDCCA vs. (everybody) so weak, but it's kind of a disappointment to think that a U.S. citizen couldn't reverse engineer in a similar manner and distribute the results themselves. As far as I'm concerned, I'm not concerned specifically about DeCSS. I care about the right to reverse-engineer software no matter what the authors put in their shrink-wrap/click-wrap license; losing reverse-engineering as a shielded fair use is far worse than losing any one program. Eric From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 15:59:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31757 for dvd-discuss-outgoing; Mon, 3 Apr 2000 15:59:34 -0400 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 PAA31754 for ; Mon, 3 Apr 2000 15:59:30 -0400 Received: (qmail 27166 invoked by uid 60001); 3 Apr 2000 20:00:30 -0000 Message-ID: <20000403200030.27165.qmail@web504.mail.yahoo.com> Received: from [131.44.121.4] by web504.mail.yahoo.com; Mon, 03 Apr 2000 13:00:30 PDT Date: Mon, 3 Apr 2000 13:00:30 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Defintion of 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 --- Richard Hartman wrote: > > Once you've lawfully aquired a physical copy, you've completed the > > access phase, which then implies the freedom to use exists. > > > > ... except when an "access control" mechanism is in place, > which is the whole problem we are trying to define! The arguement that I'm making, that was originally proposed by the five leading Library Associations in their comment to the Copyright Office, is that there are two types of technology controls that can be placed on a work: One is there to prevent you from aquiring a copy at all - you start with nothing and unless you follow the process you remain with nothing. The second stops the consumer from doing certain things with the work, even though they have already obtained it as distributed. The first type they and I call "access control". The second is "use control", and is not access control, even though it may also employ encryption techniques. We claim that 1201(a) applies only to access controls of the first kind. If you compare DVD's with the RealNetworks server, you might conclude that DeCSS bypasses a "use control" (CSS), whereas the Streambox VCR bypasses a true "access control". (FYI, Streambox is the other DMCA case that has made it to the preliminary injuction phase.) __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 16:22:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32583 for dvd-discuss-outgoing; Mon, 3 Apr 2000 16:22:30 -0400 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 QAA32580 for ; Mon, 3 Apr 2000 16:22:29 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 13:24:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A44@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Mon, 3 Apr 2000 13:23:55 -0700 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 thought that shrink-wrap agreements were long ago ruled as non-binding. That never stopped anybody from writing them, but I'm pretty sure that there were cases where they were ruled invalid. Wouldn't that carry over to "click-wrap" agreements? Secondarily -- is a clause prohibiting reverse engineering valid/enforcable even if the method of the agreement (i.e. "click-wrap") is considered to be valid? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Eric Seppanen [mailto:eds@reric.net] > Sent: Monday, April 03, 2000 12:51 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > On Mon, Apr 03, 2000 at 03:26:28PM -0400, Robert S. Thau wrote: > > Steven Barker writes: > > > #2 is wrong. It is illegal to disseminate information > you know is > > > a trade secret that was obtained illegally. The trick to this is > > > that the DVD CCA needs to show that the defendants in > the case all > > > knew that DeCSS was illegally reverse engineered. Because, for a > > > long time, nobody considered that reverse engineering was against > > > the license, this will be very hard for them to do. As > long as the > > > they thought it was ligitimately done, they cannot > guilty of trade > > > secret violations. > > > > Well, the license itself is pretty explicit about that. So, I guess > > the question is: if some Germans misappropriate a Xing trade secret, > > and pass it along to a Norwegian who forwards it to third parties, > > then do the Norweigian or the third parties "have reason to > know" the > > terms of the Xing license? > > Isn't it worth fighting the good fight here, to try to get the whole > shrink-wrap or click-wrap reverse-engineering prohibition tossed? > > I mean, it's great that the juridictional issues and the chain of > who-wrote-what code makes DVDCCA vs. (everybody) so weak, but > it's kind of > a disappointment to think that a U.S. citizen couldn't > reverse engineer > in a similar manner and distribute the results themselves. > > As far as I'm concerned, I'm not concerned specifically about > DeCSS. I > care about the right to reverse-engineer software no matter what the > authors put in their shrink-wrap/click-wrap license; losing > reverse-engineering as a shielded fair use is far worse than > losing any > one program. > > Eric > From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 16:28:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA00510 for dvd-discuss-outgoing; Mon, 3 Apr 2000 16:28:31 -0400 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 QAA00507 for ; Mon, 3 Apr 2000 16:28:31 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 9375C76F3; Mon, 3 Apr 2000 15:30:01 -0500 (CDT) Date: Mon, 3 Apr 2000 15:30:01 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403153001.A2146@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <20000403135449.A2073@arh1176.urh.uiuc.edu> <200004031926.PAA13244@soggy-fibers.ai.mit.edu> <20000403145121.A16131@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000403145121.A16131@thud.reric.net>; from eds@reric.net on Mon, Apr 03, 2000 at 02:51:21PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 02:51:21PM -0500, Eric Seppanen wrote: > On Mon, Apr 03, 2000 at 03:26:28PM -0400, Robert S. Thau wrote: > > > > Well, the license itself is pretty explicit about that. So, I guess > > the question is: if some Germans misappropriate a Xing trade secret, > > and pass it along to a Norwegian who forwards it to third parties, > > then do the Norweigian or the third parties "have reason to know" the > > terms of the Xing license? I may not have been as clear as I would have liked in my earlier post. The limit on disseminating trade secrets does not come from the license, but from trade secret law itself. I don't have a handy reference, but it's a pretty standard part that if you know a trade secret has been misappropriated or illegally disseminated by somebody else, it is illegal for you to disseminate it. > Isn't it worth fighting the good fight here, to try to get the whole > shrink-wrap or click-wrap reverse-engineering prohibition tossed? It might be, but it is certainly not necessary to the case. I doubt a judge would make any broad statements against shrink wrap licenses until the case was appealed to a higher court. > I mean, it's great that the juridictional issues and the chain of > who-wrote-what code makes DVDCCA vs. (everybody) so weak, but it's kind of > a disappointment to think that a U.S. citizen couldn't reverse engineer > in a similar manner and distribute the results themselves. > > As far as I'm concerned, I'm not concerned specifically about DeCSS. I > care about the right to reverse-engineer software no matter what the > authors put in their shrink-wrap/click-wrap license; losing > reverse-engineering as a shielded fair use is far worse than losing any > one program. I wrote a slashdot post to this effect in reply to the story about a new CSS licensed DVD player for linux (not all open source of course), but it was eaten by Mozilla when I was checking my links (to the faq's of DVD discuss and the DVD CCA, as a comparison of real legal argument and propoganda). -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: This fortune is inoperative. Please try another. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 16:52:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01715 for dvd-discuss-outgoing; Mon, 3 Apr 2000 16:52:23 -0400 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 QAA01712 for ; Mon, 3 Apr 2000 16:52:21 -0400 Received: (qmail 22389 invoked by uid 502); 3 Apr 2000 20:55:21 -0000 Date: Mon, 3 Apr 2000 16:55:21 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Request re: Johansen Arrest Message-ID: <20000403165521.C15983@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 Hey guys. The FAQ team is conducting a rigorous fact audit of the FAQ list as we speak. I wanted to thank everyone who so far has contributed their "nitpick" lists; they'll ensure that the first "official" release of the FAQ will be a good one. We ran into a snag and I'm hoping someone here has the answer to this one. When Johansen was detained for questioning in Norway, a number of people suggested that the "arrest" was instigated by request or action by U.S. entities (mainly legal representation of the U.S. entertainment industry). As it stands, this is mentioned in the FAQ but we don't have any actual links or evidence of this. Now I've heard that Norwegian authorities actually claimed that this action was taken due to pressure from American powers, but once again, no evidence. Does anyone have a link or a press reference to *anything* showing that the Norwegian police stated publicly that they had acted on behalf of U.S. powers? If not, we're going to have to remove it from the FAQ as being purely speculative. -- 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 Mon Apr 3 16:59:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02076 for dvd-discuss-outgoing; Mon, 3 Apr 2000 16:59:09 -0400 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 QAA02073 for ; Mon, 3 Apr 2000 16:59:07 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id OAA10605 for ; Mon, 3 Apr 2000 14:00:22 -0700 (PDT) Message-ID: <38E905F3.36EC5AA6@cdpage.com> Date: Mon, 03 Apr 2000 14:58:27 -0600 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] FAQ Request re: Johansen Arrest References: <20000403165521.C15983@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: > Now I've heard that Norwegian authorities actually claimed that > this action was taken due to pressure from American powers, but once > again, no evidence. Does anyone have a link or a press reference to > *anything* showing that the Norwegian police stated publicly that > they had acted on behalf of U.S. powers? > http://www.cnn.com/2000/TECH/ptech/01/25/dvd.charge/index.html -- 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 Apr 3 17:01:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02212 for dvd-discuss-outgoing; Mon, 3 Apr 2000 17:01:12 -0400 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 RAA02208 for ; Mon, 3 Apr 2000 17:01:11 -0400 Received: (qmail 6901 invoked by uid 60001); 3 Apr 2000 21:02:07 -0000 Message-ID: <20000403210207.6900.qmail@web501.mail.yahoo.com> Received: from [131.44.121.4] by web501.mail.yahoo.com; Mon, 03 Apr 2000 14:02:07 PDT Date: Mon, 3 Apr 2000 14:02:07 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] DVDCCA "faq" 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 Richard Hartman wrote: > Well, geez. Even if we take their citation of this law at face value > (and others have question whether a California law has any bearing > on this situation), it's right there in practically the first paragraph: <> This exemption for reverse engineering from state trade secret law is not accidental. The US Supreme Court held in Bonito Boats (see below) that state law may not give patent like protection to trade secrets without violating the Supremacy Clause. In particular, they explicitly said that reverse engineering is a legitimate activity aside from patent law claims. It seems to me that the DVDCCA will have to rely soly on a breach of contract claim, which seems pretty difficult, since A) they don't know who committed the breach and B) the don't know if the laws of the Country of this person pre-empt the contract C) Frank Stevenson's cryptanalysis shows that DeCSS can be created using no player at all, ie without any XingDVD contract D) it is not even settled US law that shrink/click wrap licences are valid contracts. E) Even if shrink/click wrap licences are contracts in the US, reverse engineeing prohibitions might be preempted by federal law _________________________ BONITO BOATS v THUNDER CRAFT BOATS 489 US 141 http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=489&page=141 Held [...] (c) That the Florida statute does [103 L Ed 2d 129] not restrict all means of reproduction does not eliminate the conflict with the federal patent scheme. In essence, the statute grants the original manufacturer the right to prohibit a form of reverse engineering of a product in general circulation. This is one of the rights granted to the federal patent holder, but has never been part of state protection under the law of unfair competition or trade secrets. The study and recomposition of unpatented articles available to the public at large may lead to significant advances in technology and design. Moreover, the threat of reverse engineering of unpatented articles creates a significant spur to the achievement of the rigorous standards of patentability established by Congress. By substantially altering this competitive reality, the Florida statute and similar state laws may erect themselves as substantial competitors to the federal patent scheme. Such a result would contravene the congressional intent to create a uniform system for determining the boundaries of public and private right in utilitarian and design ideas. Kewanee Oil Co. v Bicron Corp., 416 US 470, 40 L Ed 2d 315, 94 S Ct 1879, 69 Ohio Ops 2d 235, distinguished. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 17:27:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02993 for dvd-discuss-outgoing; Mon, 3 Apr 2000 17:27:45 -0400 Received: from rmx01.mail.com (rmx01.mail.com [165.251.32.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA02990 for ; Mon, 3 Apr 2000 17:27:41 -0400 From: majeredb8@altavista.net Received: from weba3.iname.net (weba3.iname.net [165.251.4.13]) by rmx01.mail.com (8.9.3/8.9.3) with ESMTP id RAA07258 for ; Mon, 3 Apr 2000 17:28:30 -0400 (EDT) Received: (from root@localhost) by weba3.iname.net (8.9.1a/8.9.2.Alpha2) id RAA13385; Mon, 3 Apr 2000 17:28:28 -0400 (EDT) MIME-Version: 1.0 Message-Id: <00040317280827.09266@weba3.iname.net> Date: Mon, 3 Apr 2000 17:28:08 -0400 (EDT) Content-Type: Text/Plain Content-Transfer-Encoding: 7bit To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Impact of Microsoft decision Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm a newcomer to the list, but after hearing the preliminary reports from CNN regarding the Microsoft decision brings up some interesting points about how this precedent may be applied to other law areas. Jackson ruled that Microsoft placed a "shackle" across the industry, making a software barrier to entry. Briefly, I find it quite interesting that the judge ruled that, despite the intellectual property granted to Microsoft, MS's use of that (Windows, Internet Explorer, etc.) to halt the industry strongly applies to other cases, perhaps even the cases surrounding DeCSS. Specifically, DVDCCA uses a technology to limit selection to specific discs and players; Microsoft used Internet Explorer, as packaged in Windows 95 and Windows 98, to thwart consumer and industry choice. Thoughts? Steve Sawyer MajereDB8@altavista.net Support Online Freedom and Reverse Engineering Support DeCSS http://www.eff.org | http://www.slashdot.org ---------------------------------------------------------------- Get your free email from AltaVista at http://altavista.iname.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 17:33:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03159 for dvd-discuss-outgoing; Mon, 3 Apr 2000 17:33:45 -0400 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 RAA03156 for ; Mon, 3 Apr 2000 17:33:43 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA16615 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 16:34:43 -0500 Date: Mon, 3 Apr 2000 16:34:43 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403163443.A16586@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000403210207.6900.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000403210207.6900.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Apr 03, 2000 at 02:02:07PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 02:02:07PM -0700, Bryan Taylor wrote: > > This exemption for reverse engineering from state trade secret law is > not accidental. The US Supreme Court held in Bonito Boats (see below) > that state law may not give patent like protection to trade secrets > without violating the Supremacy Clause. In particular, they explicitly > said that reverse engineering is a legitimate activity aside from > patent law claims. Cool. Thanks for the great info. Why do I keep imagining a leaky boat about to set sail when I think of the DVDCCA's case? > It seems to me that the DVDCCA will have to rely soly on a breach of > contract claim, which seems pretty difficult, since > A) they don't know who committed the breach and > B) the don't know if the laws of the Country of this person pre-empt > the contract > C) Frank Stevenson's cryptanalysis shows that DeCSS can be created > using no player at all, ie without any XingDVD contract Sorry to nitpick... I think Frank's analysis establishes that *player keys* can be recreated without any RE, but the algorithm is fairly tricky and was almost certainly reverse-engineered. Nobody has done a cryptanalysis that exposes the *algorithm*. So this isn't really true. > D) it is not even settled US law that shrink/click wrap licences are > valid contracts. > E) Even if shrink/click wrap licences are contracts in the US, reverse > engineeing prohibitions might be preempted by federal law Eric From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 18:00:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03939 for dvd-discuss-outgoing; Mon, 3 Apr 2000 18:00:50 -0400 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 SAA03936 for ; Mon, 3 Apr 2000 18:00:48 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id OAA16372 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 14:57:31 -0700 Date: Mon, 3 Apr 2000 14:57:30 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403145730.P23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000403210207.6900.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000403210207.6900.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Apr 03, 2000 at 02:02:07PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > It seems to me that the DVDCCA will have to rely soly on a breach of > contract claim, which seems pretty difficult, since > [...] > C) Frank Stevenson's cryptanalysis shows that DeCSS can be created > using no player at all, ie without any XingDVD contract This is not quite right, because the reason Frank Stevenson had access to the details of the CSS algorithm was that it was implemented in DeCSS or in css-auth, which was derived from DeCSS, which was supposedly derived from reverse engineering of the Xing player. The DVD CCA claims that _both_ the CSS algorithm and the Xing player key are trade secrets, and that neither could be obtained without reverse engineering. Stevenson's work shows that an advance knowledge of player keys is not needed at all, but it still relies on an implementation or description of the CSS algorithm. The DVD CCA maintains that the CSS algorithm itself, even without any keys, is a trade secret (and was obtained by reverse engineering in violation of a license agreement). > BONITO BOATS v THUNDER CRAFT BOATS > 489 US 141 > http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=489&page=141 > > Held [...] > The study and recomposition > of unpatented articles available to the public at large may lead to > significant advances in technology and design. Neat. -- 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 Apr 3 18:01:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04021 for dvd-discuss-outgoing; Mon, 3 Apr 2000 18:01:04 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04018 for ; Mon, 3 Apr 2000 18:01:04 -0400 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Mon, 3 Apr 2000 18:03:14 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C07@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Impact of Microsoft decision Date: Mon, 3 Apr 2000 18:03:13 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) 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 SAA04019 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm a bit amused at the reporting on this case; the findings of law show a very difficult set of questions, and holds Microsoft's marketing practices as permissible. It is a very complex document. The most relevant part of the decision is the comments about the limitation of the rights of copyright holders. The following quote is interesting: ----- To the extent that Microsoft still asserts a copyright defense, relying upon federal copyright law as a justification for its various restrictions on OEMs, that defense neither explains nor operates to immunize Microsoft's conduct under the Sherman Act. As a general proposition, Microsoft argues that the federal Copyright Act, 17 U.S.C. §101 et seq., endows the holder of a valid copyright in software with an absolute right to prevent licensees, in this case the OEMs, from shipping modified versions of its product without its express permission. In truth, Windows 95 and Windows 98 are covered by copyright registrations, Findings ¶ 228, that "constitute prima facie evidence of the validity of the copyright." 17 U.S.C. §410(c). But the validity of Microsoft's copyrights has never been in doubt; the issue is what, precisely, they protect. Microsoft has presented no evidence that the contractual (or the technological) restrictions it placed on OEMs' ability to alter Windows derive from any of the enumerated rights explicitly granted to a copyright holder under the Copyright Act. Instead, Microsoft argues that the restrictions "simply restate" an expansive right to preserve the "integrity"of its copyrighted software against any "distortion," "truncation," or "alteration," a right nowhere mentioned among the Copyright Act's list of exclusive rights, 17 U.S.C. §106, thus raising some doubt as to its existence. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1973) (not all uses of a work are within copyright holder's control; rights limited to specifically granted "exclusive rights"); cf. 17 U.S.C. § 501(a) (infringement means violating specifically enumerated rights).(2) ---- Now, although this argument is used to discuss the application of copyright law to the Sherman Act, notice the way its reasoned -- it is the responsibility of the copyright holder to show that the control over the work is a specifically enumerated right in 17 USC S 106. Can DVD CCA be held to the same standard? I wonder... From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 18:13:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04319 for dvd-discuss-outgoing; Mon, 3 Apr 2000 18:13:15 -0400 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 SAA04316 for ; Mon, 3 Apr 2000 18:13:14 -0400 Received: (qmail 15416 invoked by uid 60001); 3 Apr 2000 22:14:14 -0000 Message-ID: <20000403221414.15415.qmail@web505.mail.yahoo.com> Received: from [131.44.121.4] by web505.mail.yahoo.com; Mon, 03 Apr 2000 15:14:14 PDT Date: Mon, 3 Apr 2000 15:14:14 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Trade Secrets & click-wrap licences 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 The DVDCCA FAQ thread has renewed my interest, so I am going to focus for a while on trade secrets and the related shink / click wrap licence questions. Ultimately, I'd like to write a brief to answer the EFF question on this. Please contact me if you want to work with me on this memo. I've found a couple reasonable starting points. Of course, this first place to start is with the law, and Jeremy Erwin posted the relevant part of Cal Civ Code 3426 (1999) in the following post: http://eon.law.harvard.edu/archive/dvd-discuss/msg02136.html "The Trade Secret Homepage" is probably also a good starting point: http://www.execpc.com/~mhallign/ An enormous amount of material on the interplay between IP and Contracts, including a caselaw bibliography and links to law review articles, is available from the Berkman Center's page: http://eon.law.harvard.edu/h2o/property/alternatives/main.html __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 20:11:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06747 for dvd-discuss-outgoing; Mon, 3 Apr 2000 20:11:50 -0400 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 UAA06744 for ; Mon, 3 Apr 2000 20:11:49 -0400 Received: (qmail 3037 invoked by uid 60001); 4 Apr 2000 00:08:11 -0000 Message-ID: <20000404000811.3036.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Mon, 03 Apr 2000 17:08:11 PDT Date: Mon, 3 Apr 2000 17:08:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] DVDCCA "faq" 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: > Sorry to nitpick... I think Frank's analysis establishes that *player > keys* can be recreated without any RE, but the algorithm is fairly tricky > and was almost certainly reverse-engineered. Nobody has done a > cryptanalysis that exposes the *algorithm*. So this isn't really true. Good point. I plead ignorance. I assumed, perhaps mistakenly, that the algorithm was available and just the keys were secret, since this is how most real crypto systems work - for good reason. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 20:28:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07195 for dvd-discuss-outgoing; Mon, 3 Apr 2000 20:28:21 -0400 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 UAA07192 for ; Mon, 3 Apr 2000 20:28:20 -0400 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 UAA12051 for ; Mon, 3 Apr 2000 20:29:21 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA14800; Mon, 3 Apr 2000 20:29:21 -0400 (EDT) Date: Mon, 3 Apr 2000 20:29:21 -0400 (EDT) Message-Id: <200004040029.UAA14800@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "reason to know" In-Reply-To: <20000403153001.A2146@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <20000403135449.A2073@arh1176.urh.uiuc.edu> <200004031926.PAA13244@soggy-fibers.ai.mit.edu> <20000403145121.A16131@thud.reric.net> <20000403153001.A2146@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 Mon, Apr 03, 2000 at 03:26:28PM -0400, Robert S. Thau wrote: > > > > > > Well, the license itself is pretty explicit about that. So, I guess > > > the question is: if some Germans misappropriate a Xing trade secret, > > > and pass it along to a Norwegian who forwards it to third parties, > > > then do the Norweigian or the third parties "have reason to know" the > > > terms of the Xing license? > > I may not have been as clear as I would have liked in my earlier > post. The limit on disseminating trade secrets does not come from > the license, but from trade secret law itself. I don't have a > handy reference, but it's a pretty standard part that if you know a > trade secret has been misappropriated or illegally disseminated by > somebody else, it is illegal for you to disseminate it. Actually, the standard in the California law (quoted earlier in the thread) is that you're liable if you "know or have reason to know" that whatever you're disseminating is trade secret. So, by that standard, it looks to me like the DVDCCA needs to show that Johansen "knew or had reason to know" that the Xing license both: 1) had an enforceable clause banning reverse engineering 2) was binding on the people who did it Which is why I raised the question of what constitutes a "reason to know", under California trade secret law... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 22:54:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11722 for dvd-discuss-outgoing; Mon, 3 Apr 2000 22:54:17 -0400 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 WAA11719 for ; Mon, 3 Apr 2000 22:54:16 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id WAA31273; Mon, 3 Apr 2000 22:55:17 -0400 Date: Mon, 3 Apr 2000 22:55:17 -0400 From: Jim Bauer Message-Id: <200004040255.WAA31273@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Newsgroups: local.dvd-discuss In-Reply-To: <200004031824.OAA12885@soggy-fibers.ai.mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > >BTW, on the jurisdictional question I keep harping on, I just noticed >this, in clause 10 of the license: "This Agreement shall be governed >by and construed in accordance with the laws of the State of >Calfiornia and by U.S. federal law relating to intellectual property >in general, and to copyrights, patents, and trademarks in particular. >You agree to submit all disputes to the exclusive jurisdiction of >courts or tribunals located within the territorial boundaries of the >U.S." > >Which may still leave the question of whether a click-wrap dialog box >creates an enforcable contract in the first place.... What language(s) was the click-wrap license written in? How does that compare to the official language(s) of wherever the reverse engineering took place? Does that even matter? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 23:31:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15273 for dvd-discuss-outgoing; Mon, 3 Apr 2000 23:31:03 -0400 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 XAA15266 for ; Mon, 3 Apr 2000 23:31:02 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id WAA18010 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 22:32:03 -0500 Date: Mon, 3 Apr 2000 22:32:02 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403223202.A17922@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> 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: <200004040255.WAA31273@emperor.hwrd1.md.home.com>; from jfbauer@home.com on Mon, Apr 03, 2000 at 10:55:17PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 10:55:17PM -0400, Jim Bauer wrote: > "Robert S. Thau" wrote: > > > >BTW, on the jurisdictional question I keep harping on, I just noticed > >this, in clause 10 of the license: "This Agreement shall be governed > >by and construed in accordance with the laws of the State of > >Calfiornia and by U.S. federal law relating to intellectual property > >in general, and to copyrights, patents, and trademarks in particular. > >You agree to submit all disputes to the exclusive jurisdiction of > >courts or tribunals located within the territorial boundaries of the > >U.S." > > > >Which may still leave the question of whether a click-wrap dialog box > >creates an enforcable contract in the first place.... > > What language(s) was the click-wrap license written in? How does > that compare to the official language(s) of wherever the reverse > engineering took place? Does that even matter? from http://odin.dep.no/ud/nornytt/uda-315.html "Norway has two official written languages, Bokmål (Dano-Norwegian) and Nynorsk (New Norwegian)." That info seems to be echoed on several other sites, as well. While we're at it, don't forget that Jon is a *minor*; he was 16 then and is 17 now, IIRC. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 3 23:44:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15895 for dvd-discuss-outgoing; Mon, 3 Apr 2000 23:44:48 -0400 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 XAA15892 for ; Mon, 3 Apr 2000 23:44:47 -0400 Received: (qmail 31262 invoked by uid 502); 4 Apr 2000 03:47:55 -0000 Date: Mon, 3 Apr 2000 23:47:55 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403234755.O23604@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000403223202.A17922@thud.reric.net>; from Eric Seppanen on Mon, Apr 03, 2000 at 10:32:02PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 10:32:02PM -0500, Eric Seppanen wrote: > > That info seems to be echoed on several other sites, as well. > > While we're at it, don't forget that Jon is a *minor*; he was 16 then and > is 17 now, IIRC. I thought that was 15/16. Didn't he just turn 16 in January? -- 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 Mon Apr 3 23:48:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16108 for dvd-discuss-outgoing; Mon, 3 Apr 2000 23:48:55 -0400 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 XAA16073 for ; Mon, 3 Apr 2000 23:48:53 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id UAA16868 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 20:45:34 -0700 Date: Mon, 3 Apr 2000 20:45:33 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403204533.Y23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000403223202.A17922@thud.reric.net>; from eds@reric.net on Mon, Apr 03, 2000 at 10:32:02PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > While we're at it, don't forget that Jon is a *minor*; he was 16 then and > is 17 now, IIRC. This is not very encouraging -- it could lead to more problematic situations in which minors are supposed to be rigorously kept away from access to copyrighted materials. Many people still remember the controversy that Corel inspired when it promulgated its download EULA: http://linux.corel.com/products/linux_os/eula.htm If people start to use legal minority as a defense more often, it's only going to mean more and more things that people won't allow minors to do. -- 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 Apr 3 23:59:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16372 for dvd-discuss-outgoing; Mon, 3 Apr 2000 23:59:25 -0400 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 XAA16369 for ; Mon, 3 Apr 2000 23:59:24 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id XAA18338 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Apr 2000 23:00:16 -0500 Date: Mon, 3 Apr 2000 23:00:15 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000403230015.A18226@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@thud.reric.net> <20000403234755.O23604@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000403234755.O23604@linuxpower.org>; from greslin@linuxpower.org on Mon, Apr 03, 2000 at 11:47:55PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 03, 2000 at 11:47:55PM -0400, greslin@linuxpower.org wrote: > On Mon, Apr 03, 2000 at 10:32:02PM -0500, Eric Seppanen wrote: > > > > That info seems to be echoed on several other sites, as well. > > > > While we're at it, don't forget that Jon is a *minor*; he was 16 then and > > is 17 now, IIRC. > > I thought that was 15/16. Didn't he just turn 16 in January? You are correct. He answers this in the Linuxworld interview: http://www.cnn.com/2000/TECH/computing/01/31/johansen.interview.idg/index.html Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 00:30:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16838 for dvd-discuss-outgoing; Tue, 4 Apr 2000 00:30:45 -0400 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 AAA16835 for ; Tue, 4 Apr 2000 00:30:44 -0400 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 AAA29679 for ; Tue, 4 Apr 2000 00:31:46 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA15621; Tue, 4 Apr 2000 00:31:45 -0400 (EDT) Date: Tue, 4 Apr 2000 00:31:45 -0400 (EDT) Message-Id: <200004040431.AAA15621@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" In-Reply-To: <20000403223202.A17922@thud.reric.net> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > > What language(s) was the click-wrap license written in? How does > > that compare to the official language(s) of wherever the reverse > > engineering took place? Does that even matter? > > from http://odin.dep.no/ud/nornytt/uda-315.html > > "Norway has two official written languages, Bokmål (Dano-Norwegian) and > Nynorsk (New Norwegian)." > > While we're at it, don't forget that Jon is a *minor*; he was 16 then and > is 17 now, IIRC. But by Jon's own account, he did *not* do the reverse engineering himself; he was just passing along the work of other folks in Germany, who may or may not have been minors, and whose official language is certainly not any flavor of Norwegian. WRT the click-wrap license, at least, his own legal situation is a lot less relevant than that of the folks who had the Xing player, and may or may not have been bound by it. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 00:45:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17029 for dvd-discuss-outgoing; Tue, 4 Apr 2000 00:45:22 -0400 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 AAA17026 for ; Tue, 4 Apr 2000 00:45:21 -0400 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 AAA00703 for ; Tue, 4 Apr 2000 00:46:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA15682; Tue, 4 Apr 2000 00:46:21 -0400 (EDT) Date: Tue, 4 Apr 2000 00:46:21 -0400 (EDT) Message-Id: <200004040446.AAA15682@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" In-Reply-To: <200004040431.AAA15621@soggy-fibers.ai.mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@thud.reric.net> <200004040431.AAA15621@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: > But by Jon's own account, he did *not* do the reverse engineering > himself; he was just passing along the work of other folks in Germany, > who may or may not have been minors, and whose official language is > certainly not any flavor of Norwegian. An addendum: in the LinuxWorld interview, Jon says that "the encryption code wasn't in fact written by me, but by the German member", implying that the third member of M.O.R.E. was from elsewhere. He also says that his two collaborators are remaining anonymous because "they are both a lot older than me, and they are employed", though it's not clear how he could be sure of that if, as he claims, he knows them only by IRC nicknames. That may have some bearing on the "minors and contracts" issue. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 03:15:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA18678 for dvd-discuss-outgoing; Tue, 4 Apr 2000 03:15:58 -0400 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 DAA18675 for ; Tue, 4 Apr 2000 03:15:57 -0400 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 AAA19076 for ; Tue, 4 Apr 2000 00:16:42 -0700 (PDT) Received: from localhost (smb23@localhost) by lennon.csufresno.edu (8.9.3/8.9.3) with SMTP id AAA21922 for ; Tue, 4 Apr 2000 00:16:41 -0700 (PDT) Date: Tue, 4 Apr 2000 00:16:41 -0700 (PDT) From: Steve M Bibayoff To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Request re: Johansen Arrest In-Reply-To: <20000403165521.C15983@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, 3 Apr 2000 greslin@linuxpower.org wrote: > We ran into a snag and I'm hoping someone here has the answer to > this one. When Johansen was detained for questioning in Norway, > a number of people suggested that the "arrest" was instigated by > request or action by U.S. entities (mainly legal representation of > the U.S. entertainment industry). As it stands, this is mentioned > in the FAQ but we don't have any actual links or evidence of this. > > Now I've heard that Norwegian authorities actually claimed that > this action was taken due to pressure from American powers, but once > again, no evidence. Does anyone have a link or a press reference to > *anything* showing that the Norwegian police stated publicly that > they had acted on behalf of U.S. powers? The Norwegian authorities have either waffled on, made no comment on, or outright denied that claim. It depends on the source of the story. The CNN link Dana provided doesn't clearly state(at least to me) that they acted because of presure from MPAA or affilates. The MPAA of course has always denied they had anything to do with the arrest. I'll look for relevant links that state both sides. Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 08:32:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA22412 for dvd-discuss-outgoing; Tue, 4 Apr 2000 08:32:04 -0400 Received: from hotmail.com (f215.law3.hotmail.com [209.185.241.215]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA22409 for ; Tue, 4 Apr 2000 08:32:03 -0400 Received: (qmail 95359 invoked by uid 0); 4 Apr 2000 12:32:35 -0000 Message-ID: <20000404123235.95358.qmail@hotmail.com> Received: from 130.225.119.206 by www.hotmail.com with HTTP; Tue, 04 Apr 2000 05:32:35 PDT X-Originating-IP: [130.225.119.206] From: "Claus Adamsen" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" et al Date: Tue, 04 Apr 2000 14:32:35 CEST 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 A comment on some of Robert S. Thau's recent statements on reverse engineering: >Note the implications that whoever performed the reverse engineering >was bound by the license agreement, including the clause mandating the >duty to maintain secrecy, which seems (to my non-lawyerly eyes) to >require that: > > 1) Shrink-wrap license agreements like those for the Xing player > are binding in the jurisdiction where the reverse engineering > was performed. (Hmmm... is it shrink-wrap or click-wrap?) > > 2) Clauses within those license agreements which bar reverse > engineering are likewise legal and binding in the relevant > jurisdiction. >Well, I've got a booklet with commercial Oracle licenses sitting in >front of me --- the one for the U.S. (and all countries other than the >thirty or so others with applicable licenses of their own in the book) >says: > > Customer shall not: ... (d) cause or permit reverse engineering, > disassembly, or decompilation of programs; or (e) disclose results > of any benchmark tests of any Program to any third party without > Oracle's prior written approval. > >The other English licenses, for Canada and England, have similar >clauses, except the one for England, which permits reverse engineering >to determine information required to create interoperable programs if >the customer contacted Oracle first. The French licenses are similar, >as far as I can tell (do *not* bet your fortune in a lawsuit on my >readings of French legalese), except that the French/France license >also seems to have a similar exception to the reverse engineering >clause, as does the French license for Belgium, Luxembourg, and the >Netherlands (AFAICS, the Quebecois license does not). If there's a >general E.U. rule here, it might be a useful one. Well, there is. The Eu Council Directive 91/250/EEC Articles 5 and 6 specifically permits reverse engineering and decompilation for a few limited purposes (notably, to achieve interoperability of an independently created computer program), and according to Article 9(1) of the directive: Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5 (2) and (3) shall be null and void. http://europa.eu.int/eur-lex/en/lif/dat/1991/en_391L0250.html Oracle's licences for EU countries thus has to take into account that certain acts of reverse engineering cannot be barred by contract. This means that if the choice-of-law provision is un-enforceable in the jurisdiction where the reverse engineering was performed (because it is shrink-wrap or because it is contrary to Art. 9(1) of the Directive), the original reverse engineering may have been lawfully performed according to the law of that jurisdiction. I don't know is this has any impact on the US proceedings. Claus Adamsen claus_adamsen@hotmail.com ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 09:47:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA23908 for dvd-discuss-outgoing; Tue, 4 Apr 2000 09:47:01 -0400 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 JAA23905 for ; Tue, 4 Apr 2000 09:47:00 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id GAA16011 for ; Tue, 4 Apr 2000 06:48:18 -0700 (PDT) Message-ID: <38E9F22E.63AB7AE2@cdpage.com> Date: Tue, 04 Apr 2000 07:46:22 -0600 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] DVDCCA "faq" References: <5A8391CA2D9ED311AFAA080009D982B10B1A42@mail2.onetouch.com> <200004031824.OAA12885@soggy-fibers.ai.mit.edu> <200004040255.WAA31273@emperor.hwrd1.md.home.com> <20000403223202.A17922@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: > > > While we're at it, don't forget that Jon is a *minor*; he was 16 then and > is 17 now, IIRC. He was 15 in November and is 16 now. -- 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 Tue Apr 4 10:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25436 for dvd-discuss-outgoing; Tue, 4 Apr 2000 10:41:32 -0400 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 KAA25433 for ; Tue, 4 Apr 2000 10:41:32 -0400 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 KAA14375 for ; Tue, 4 Apr 2000 10:42:35 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA17083; Tue, 4 Apr 2000 10:42:34 -0400 (EDT) Date: Tue, 4 Apr 2000 10:42:34 -0400 (EDT) Message-Id: <200004041442.KAA17083@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" et al In-Reply-To: <20000404123235.95358.qmail@hotmail.com> References: <20000404123235.95358.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Claus Adamsen writes: > Well, there is. The Eu Council Directive 91/250/EEC Articles 5 and > 6 specifically permits reverse engineering and decompilation for a > few limited purposes (notably, to achieve interoperability of an > independently created computer program), and according to Article > 9(1) of the directive: > > Any contractual provisions contrary to Article 6 or to the exceptions > provided for in Article 5 (2) and (3) shall be null and void. > > http://europa.eu.int/eur-lex/en/lif/dat/1991/en_391L0250.html Thanks! BTW, it turns out that the EFF documents archive contains a declaration from Jon Bing, a Norwegian law school professor (from the Norwegian Research Center for Computers and the Law), and also partner in a law firm (Bing and partners), which has a lot to say about license requirements and reverse engineering in Norwegian law specifically. See http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000118_bing_norway_law_decl.html A particularly interesting bit is section 39h of the Norwegian copyright act: Section 39h. The lawful acquirer of a computer program may make copies of, alter and adapt the program insofar as is necessary for the use of the program in accordance with its intended purpose, including the correction of errors in the program. Any person having a right to use a computer program may make a backup copy insofar as it is necessary for the use of the program. Any person having a right to use a copy of a computer program may, in connection with such loading, displaying, running, transmission or storage of the program as the user is entitled to perform, observe, study or test the functioning of the program in order to determine the ideas and principles which underlie the various elements of the program. No departures from the provisions of the second and third paragraphs may be made by agreement. If, as you suggest, the choice-of-law provision of a click-wrap agreement is invalid, then... well, we could do worse. (N.B. the validity of any provisions of a click-wrap license appears, according to Bing's declaration, to be an unsettled issue in Norwegian law --- "no Norwegian courts have found click-wrap licenses enforceable as a matter of law and it is debatable that any would"). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 10:59:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25739 for dvd-discuss-outgoing; Tue, 4 Apr 2000 10:59:31 -0400 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 KAA25736 for ; Tue, 4 Apr 2000 10:59:29 -0400 Received: (qmail 12627 invoked by uid 502); 4 Apr 2000 15:02:28 -0000 Date: Tue, 4 Apr 2000 11:02:28 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Policy Question Message-ID: <20000404110228.Z23604@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 Hey, folks. Got yet another FAQ question, this one concerning policy. We (the FAQ team) can handle changes to the FAQ in two ways; we can either go ahead and make them, and then dvd-discuss can critique the FAQ when it is posted, or we can post the significant changes as they are being made and dvd-discuss can comment on them. The first way, of course, would still mean dropping in once in a while and asking a question to the list that we're still not clear on. We're asking this out of concern of adding noise to the list, but at the same time wanting to involve the list in the FAQ process. We'll wait on a decision until a general consensus is reached. Thanks, 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 Tue Apr 4 11:14:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26644 for dvd-discuss-outgoing; Tue, 4 Apr 2000 11:14:35 -0400 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 LAA26641 for ; Tue, 4 Apr 2000 11:14:35 -0400 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 LAA19375 for ; Tue, 4 Apr 2000 11:15:38 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA17374; Tue, 4 Apr 2000 11:15:36 -0400 (EDT) Date: Tue, 4 Apr 2000 11:15:36 -0400 (EDT) Message-Id: <200004041515.LAA17374@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Policy Question In-Reply-To: <20000404110228.Z23604@linuxpower.org> References: <20000404110228.Z23604@linuxpower.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > We (the FAQ team) can handle changes to the FAQ in two ways; we can either > go ahead and make them, and then dvd-discuss can critique the FAQ when it > is posted, or we can post the significant changes as they are being made > and dvd-discuss can comment on them. > > The first way, of course, would still mean dropping in once in a while and > asking a question to the list that we're still not clear on. > > We're asking this out of concern of adding noise to the list, but at the > same time wanting to involve the list in the FAQ process. We'll wait on > a decision until a general consensus is reached. One man's opinion: the list *exists* to discuss the facts and the law relating to these cases, so raising questions about them here (whether they arose out of the FAQ discussions or not) wouldn't add noise at all. (A discussion of the HTML format of the FAQ, or something like that, would be off-topic, but I take it that's not what we're talking about). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 11:18:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26748 for dvd-discuss-outgoing; Tue, 4 Apr 2000 11:18:31 -0400 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 LAA26745 for ; Tue, 4 Apr 2000 11:18:28 -0400 Received: (qmail 13038 invoked by uid 502); 4 Apr 2000 15:21:38 -0000 Date: Tue, 4 Apr 2000 11:21:38 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404112138.D23604@linuxpower.org> References: <20000404110228.Z23604@linuxpower.org> <200004041515.LAA17374@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: <200004041515.LAA17374@soggy-fibers.ai.mit.edu>; from Robert S. Thau on Tue, Apr 04, 2000 at 11:15:36AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 11:15:36AM -0400, Robert S. Thau wrote: > > One man's opinion: the list *exists* to discuss the facts and the law > relating to these cases, so raising questions about them here (whether > they arose out of the FAQ discussions or not) wouldn't add noise at > all. (A discussion of the HTML format of the FAQ, or something like > that, would be off-topic, but I take it that's not what we're talking > about). No argument. I'm not talking here about shutting off communication between the list and the FAQ team. This is more a procedural question: do you guys want a report on changes as they are being made, or would you prefer to get them all at once in the form of the released FAQ? Either way, we'll still be dropping questions into the list every so often for clarification (such as my recent Johansen arrest question). -- 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 Tue Apr 4 11:27:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26895 for dvd-discuss-outgoing; Tue, 4 Apr 2000 11:27:39 -0400 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 LAA26892 for ; Tue, 4 Apr 2000 11:27:36 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id IAA22301 for ; Tue, 4 Apr 2000 08:28:55 -0700 (PDT) Message-ID: <38EA09C3.92E6AD11@cdpage.com> Date: Tue, 04 Apr 2000 09:26:59 -0600 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] FAQ Policy Question References: <20000404110228.Z23604@linuxpower.org> <200004041515.LAA17374@soggy-fibers.ai.mit.edu> <20000404112138.D23604@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: > No argument. I'm not talking here about shutting off communication between > the list and the FAQ team. This is more a procedural question: do you guys > want a report on changes as they are being made, or would you prefer to get > them all at once in the form of the released FAQ? Either way, we'll still > be dropping questions into the list every so often for clarification (such > as my recent Johansen arrest question). As they're made. -- 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 Tue Apr 4 11:46:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27359 for dvd-discuss-outgoing; Tue, 4 Apr 2000 11:46:44 -0400 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 LAA27356 for ; Tue, 4 Apr 2000 11:46:43 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 4 Apr 2000 08:48:10 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A50@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Tue, 4 Apr 2000 08:48:05 -0700 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: Seth David Schoen [mailto:schoen@loyalty.org] > Sent: Monday, April 03, 2000 8:46 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > Eric Seppanen writes: > > > While we're at it, don't forget that Jon is a *minor*; he > was 16 then and > > is 17 now, IIRC. > > This is not very encouraging -- it could lead to more > problematic situations > in which minors are supposed to be rigorously kept away from access to > copyrighted materials. > Excuse me? Kept away from access to copyrighted materials? That would be every book in the library, down to "Green Eggs and Ham" wouldn't it? There must be some more specificity to the prohibition that that, mustn't there? -- -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 Tue Apr 4 12:02:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27894 for dvd-discuss-outgoing; Tue, 4 Apr 2000 12:02:08 -0400 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 MAA27891 for ; Tue, 4 Apr 2000 12:02:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 4 Apr 2000 09:03:40 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A51@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] FAQ Policy Question Date: Tue, 4 Apr 2000 09:03:31 -0700 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: greslin@linuxpower.org [mailto:greslin@linuxpower.org] > Sent: Tuesday, April 04, 2000 8:22 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] FAQ Policy Question > > > On Tue, Apr 04, 2000 at 11:15:36AM -0400, Robert S. Thau wrote: > > > > One man's opinion: the list *exists* to discuss the facts > and the law > > relating to these cases, so raising questions about them > here (whether > > they arose out of the FAQ discussions or not) wouldn't add noise at > > all. (A discussion of the HTML format of the FAQ, or something like > > that, would be off-topic, but I take it that's not what > we're talking > > about). > > No argument. I'm not talking here about shutting off > communication between > the list and the FAQ team. This is more a procedural > question: do you guys > want a report on changes as they are being made, or would you > prefer to get > them all at once in the form of the released FAQ? Either > way, we'll still > be dropping questions into the list every so often for > clarification (such > as my recent Johansen arrest question). > I am assuming the released FAQ is accessable on a web site w/ a URL presented clearly on the main page to say "here is the FAQ" ... so how about a compromise. Neither a report as it is being made nor a surprise when the FAQ is released, but a "prerelease" period for comments wherein the URL of the draft FAQ is presented on this mailing list but not yet wired in as the official FAQ on the web site. Perhaps along w/ the new FAQ a summary of changes could be presented so people wouldn't have to do side-by-side comparisons of the old and new FAQs just to find the 3 differences ... Just some thoughts... -- -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 Tue Apr 4 12:26:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28461 for dvd-discuss-outgoing; Tue, 4 Apr 2000 12:26:19 -0400 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 MAA28458 for ; Tue, 4 Apr 2000 12:26:17 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA22163 for dvd-discuss@eon.law.harvard.edu; Tue, 4 Apr 2000 11:27:19 -0500 Date: Tue, 4 Apr 2000 11:27:19 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404112719.A22137@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000404110228.Z23604@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000404110228.Z23604@linuxpower.org>; from greslin@linuxpower.org on Tue, Apr 04, 2000 at 11:02:28AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 11:02:28AM -0400, greslin@linuxpower.org wrote: > > We (the FAQ team) can handle changes to the FAQ in two ways; we can either > go ahead and make them, and then dvd-discuss can critique the FAQ when it > is posted, or we can post the significant changes as they are being made > and dvd-discuss can comment on them. > > The first way, of course, would still mean dropping in once in a while and > asking a question to the list that we're still not clear on. I hate to say it, but I don't feel that throwing out every single FAQ change to the list is appropriate. It'll slow the FAQ development to a crawl and make the whole thing so complicated that it'll be hard to get anything done. And I think it could generate an incredible amount of traffic- you guys wouldn't believe the nitpicking that goes on when it's just Rob, Paul, and I trying to pick the best *word* to use in an answer! It's kind of like the process that somebody else mentioned with regard to "approving" code changes in an open-source software project: it's a bad idea because it hinders progress. I see it as a three part question: 1. Should anyone be able to see which things changed in the latest update? My answer: Yes. I don't know what the best way to do this is, however. 2. Should FAQ changes be posted to the list? My answer: Not unless there's an outstanding question about the change. We're all nitpicky geeks and the volume generated will be huge. 3. Should FAQ changes be made available before they're made or after? My answer: After. Again, if this was a software project nobody would expect a programmer to announce bugfixes and stuff *before* they went into CVS, unless there was some question about how or what should go in. Eric FAQ HTML guy From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 12:47:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28935 for dvd-discuss-outgoing; Tue, 4 Apr 2000 12:47:28 -0400 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 MAA28932 for ; Tue, 4 Apr 2000 12:47:26 -0400 Received: (qmail 16097 invoked by uid 502); 4 Apr 2000 16:50:33 -0000 Date: Tue, 4 Apr 2000 12:50:33 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404125033.E23604@linuxpower.org> References: <20000404110228.Z23604@linuxpower.org> <20000404112719.A22137@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000404112719.A22137@thud.reric.net>; from Eric Seppanen on Tue, Apr 04, 2000 at 11:27:19AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 11:27:19AM -0500, Eric Seppanen wrote: > On Tue, Apr 04, 2000 at 11:02:28AM -0400, greslin@linuxpower.org wrote: > > > > We (the FAQ team) can handle changes to the FAQ in two ways; we can either > > go ahead and make them, and then dvd-discuss can critique the FAQ when it > > is posted, or we can post the significant changes as they are being made > > and dvd-discuss can comment on them. > > > > The first way, of course, would still mean dropping in once in a while and > > asking a question to the list that we're still not clear on. > > I hate to say it, but I don't feel that throwing out every single FAQ > change to the list is appropriate. It'll slow the FAQ development to a > crawl and make the whole thing so complicated that it'll be hard to get > anything done. And I think it could generate an incredible amount of > traffic- you guys wouldn't believe the nitpicking that goes on when it's > just Rob, Paul, and I trying to pick the best *word* to use in an answer! Oy vey, the man speaks truth. :) What we could do, as has been suggested, is put the new FAQ up for a trial period before going "live". Perhaps a week. Then everyone can point out the glaring inaccuracies. Another option is keeping the "development cut" open to viewing by the list, with the understanding that this cut will be changing on a daily basis. All in all, though, Eric is right about this; the three of us right now are generating tons of volume ourselves through private email about the FAQ. Multiply that by the entire list, and dvd-discuss becomes a huge FAQ factory; everything else would get drowned out in the volume. The other problem, as Eric has pointed out, is the need for strict accuracy. He's right: we nitpick over the use of a single word. And this is the way it should be, because for example, using the term "access control" can be a loaded term. Nitpicking works when it's just the three of us. I doubt it would work if done by dozens of people. We'd spend two weeks arguing over the use of a single word. As always, I'll go with what the group decides. 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 Tue Apr 4 13:09:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29538 for dvd-discuss-outgoing; Tue, 4 Apr 2000 13:09:46 -0400 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 NAA29535 for ; Tue, 4 Apr 2000 13:09:45 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 2C7FA76F3; Tue, 4 Apr 2000 12:11:18 -0500 (CDT) Date: Tue, 4 Apr 2000 12:11:18 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404121118.A5578@arh1176.urh.uiuc.edu> References: <20000404110228.Z23604@linuxpower.org> <20000404112719.A22137@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000404112719.A22137@thud.reric.net>; from eds@reric.net on Tue, Apr 04, 2000 at 11:27:19AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 11:27:19AM -0500, Eric Seppanen wrote: > On Tue, Apr 04, 2000 at 11:02:28AM -0400, greslin@linuxpower.org wrote: > > > > We (the FAQ team) can handle changes to the FAQ in two ways; we can either > > go ahead and make them, and then dvd-discuss can critique the FAQ when it > > is posted, or we can post the significant changes as they are being made > > and dvd-discuss can comment on them. > > > > The first way, of course, would still mean dropping in once in a while and > > asking a question to the list that we're still not clear on. > > I hate to say it, but I don't feel that throwing out every single FAQ > change to the list is appropriate. It'll slow the FAQ development to a > crawl and make the whole thing so complicated that it'll be hard to get > anything done. And I think it could generate an incredible amount of > traffic- you guys wouldn't believe the nitpicking that goes on when it's > just Rob, Paul, and I trying to pick the best *word* to use in an answer! > > It's kind of like the process that somebody else mentioned with regard to > "approving" code changes in an open-source software project: it's a bad > idea because it hinders progress. The parrallel here should be kept as much as we can, I think. Why reinvent open development when others have pretty well refined many of the ideas. > I see it as a three part question: > 1. Should anyone be able to see which things changed in the latest update? > > My answer: Yes. I don't know what the best way to do this is, however. Post all old versions, or diffs from one version to the next. > 2. Should FAQ changes be posted to the list? > > My answer: Not unless there's an outstanding question about the change. > We're all nitpicky geeks and the volume generated will be huge. I agree. If the change is controversial, point it out, but for nit picking, let people find their own problems as they read it. > 3. Should FAQ changes be made available before they're made or after? > > My answer: After. Again, if this was a software project nobody would > expect a programmer to announce bugfixes and stuff *before* they went into > CVS, unless there was some question about how or what should go in. Why not immediately after? As each change is made, the development FAQ would be updated immediately but the "stable" release FAQ would stay the same. If both were readable, then changes could be seen as they happen. I would think that existing development tools could be of some use here, like making diff files from one version of the FAQ to another or a CVS type thing to make changes. I suppose the biggest quesion is how much effort it requires to implement and if it's worth it.... Anyway, I thinnk it's great that the FAQ is being so well managed. Keep up the great work. -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: Things will get better despite our efforts to improve them. -- Will Rogers From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 13:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30329 for dvd-discuss-outgoing; Tue, 4 Apr 2000 13:50:36 -0400 Received: from dial114.roadrunner.com (dial114.cybermesa.com [209.12.75.114]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30326 for ; Tue, 4 Apr 2000 13:50:33 -0400 Received: (from paul@localhost) by dial114.roadrunner.com (8.8.7/8.8.7) id LAA01038 for dvd-discuss@eon.law.harvard.edu; Tue, 4 Apr 2000 11:55:17 -0600 Date: Tue, 4 Apr 2000 11:55:16 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404115515.A584@localhost> References: <20000404110228.Z23604@linuxpower.org> <20000404112719.A22137@thud.reric.net> <20000404121118.A5578@arh1176.urh.uiuc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000404121118.A5578@arh1176.urh.uiuc.edu>; from steve@arh1176.urh.uiuc.edu on Tue, Apr 04, 2000 at 12:11:18PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 12:11:18PM -0500, Steven Barker wrote: [ ... ] > > 3. Should FAQ changes be made available before they're made or after? > > > > My answer: After. Again, if this was a software project nobody would > > expect a programmer to announce bugfixes and stuff *before* they went into > > CVS, unless there was some question about how or what should go in. > > Why not immediately after? As each change is made, the development FAQ would > be updated immediately but the "stable" release FAQ would stay the same. If > both were readable, then changes could be seen as they happen. I like this. Objections and/or modifications? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 14:04:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31488 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:04:38 -0400 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 OAA31485 for ; Tue, 4 Apr 2000 14:04:36 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 4 Apr 2000 11:06:11 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A54@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] FAQ Policy Question Date: Tue, 4 Apr 2000 11:06:09 -0700 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: Paul Fenimore [mailto:fenimore@roadrunner.com] > Sent: Tuesday, April 04, 2000 10:55 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] FAQ Policy Question > > > On Tue, Apr 04, 2000 at 12:11:18PM -0500, Steven Barker wrote: > [ ... ] > > > 3. Should FAQ changes be made available before they're > made or after? > > > > > > My answer: After. Again, if this was a software project > nobody would > > > expect a programmer to announce bugfixes and stuff > *before* they went into > > > CVS, unless there was some question about how or what > should go in. > > > > Why not immediately after? As each change is made, the > development FAQ would > > be updated immediately but the "stable" release FAQ would > stay the same. If > > both were readable, then changes could be seen as they happen. > > I like this. Objections and/or modifications? > I think the FAQ team would be kept too busy with over-the-shoulder nattering if the "in progress" work were constantly availble. I still favor the "release draft" concept where the team plays with their next draft until they are satisfied with it, then open it up for a comment period (one week?) before it becomes the "live" version. However if the team feels they can live with the completely open model, that is (of course) up to them. -- -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 Tue Apr 4 14:15:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31985 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:15:59 -0400 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 OAA31982 for ; Tue, 4 Apr 2000 14:15:58 -0400 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 OAA19210 for ; Tue, 4 Apr 2000 14:17:02 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA18579; Tue, 4 Apr 2000 14:17:00 -0400 (EDT) Date: Tue, 4 Apr 2000 14:17:00 -0400 (EDT) Message-Id: <200004041817.OAA18579@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question In-Reply-To: <20000404112719.A22137@thud.reric.net> References: <20000404110228.Z23604@linuxpower.org> <20000404112719.A22137@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > My answer: After. Again, if this was a software project nobody would > expect a programmer to announce bugfixes and stuff *before* they went into > CVS, unless there was some question about how or what should go in. Actually, the Apache group used to work *exactly* like that, with, well... undesirable results. However, many software projects do post notifications of new commits into CVS, often including diffs showing exactly what changed --- though these often go to a separate mailing list, to allow people who don't want to be bothered to opt out. (CVS can be set up to send these automatically). And of course, in a software project, there's a general review before the latest development version is anointed as fit for public use; announcements of the test versions usually note what changed, at least in general terms, so the testers know what to go pound on. That seems to be the direction in which the discussion is tending here... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 14:23:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32318 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:23:24 -0400 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 OAA32315 for ; Tue, 4 Apr 2000 14:23:23 -0400 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 OAA27415 for ; Tue, 4 Apr 2000 14:24:23 -0400 (EDT) Message-Id: <4.2.2.20000404141632.00cb7a70@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 04 Apr 2000 14:24:18 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Junger v. Daley: 6th Cir. says source code is speech 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 Congratulations. It looks like a good one. Having concluded that the First Amendment protects computer source code, we reverse the district court and remand this case for further consideration of Junger's constitutional claims in light of the amended regulations. [...] The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. Roth v. United States, 354 U.S. 476, 484 (1957) (quoting 1 Journals of the Continental Congress 108 (1774)). This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. See United States v. O'Brien, 391 U.S. 367 (1968). [...] Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment. The functional capabilities of source code, and particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech. Under intermediate scrutiny, the regulation of speech is valid, in part, if "it furthers an important or substantial governmental interest." O'Brien, 391 U.S. at 377. In Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that although an asserted governmental interest may be important, when the government defends restrictions on speech "it must do more than simply 'posit the existence of the disease sought to be cured.'" Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether the exercise of presidential power in furtherance of national security interests should overrule the interests in allowing the free exchange of encryption source code. 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 Tue Apr 4 14:33:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00569 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:33:36 -0400 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 OAA00566 for ; Tue, 4 Apr 2000 14:33:34 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA17593 for dvd-discuss@eon.law.harvard.edu; Tue, 4 Apr 2000 11:30:15 -0700 Date: Tue, 4 Apr 2000 11:30:13 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000404113013.D23385@cty-alum.org> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1A50@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A50@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Apr 04, 2000 at 08:48:05AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > > -----Original Message----- > > From: Seth David Schoen [mailto:schoen@loyalty.org] > > Sent: Monday, April 03, 2000 8:46 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > > > > Eric Seppanen writes: > > > > > While we're at it, don't forget that Jon is a *minor*; he > > was 16 then and > > > is 17 now, IIRC. > > > > This is not very encouraging -- it could lead to more > > problematic situations > > in which minors are supposed to be rigorously kept away from access to > > copyrighted materials. > > > > Excuse me? Kept away from access to copyrighted > materials? That would be every book in the library, > down to "Green Eggs and Ham" wouldn't it? There must > be some more specificity to the prohibition that that, > mustn't there? Hmmmm, yeah. I should probably say "digital copyrighted information" -- book publishers haven't attempted a great deal of shrinkwrap licensing. -- 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 Apr 4 14:36:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00682 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:36:14 -0400 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 OAA00679 for ; Tue, 4 Apr 2000 14:36:14 -0400 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 OAA22582 for ; Tue, 4 Apr 2000 14:37:17 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA18679; Tue, 4 Apr 2000 14:37:17 -0400 (EDT) Date: Tue, 4 Apr 2000 14:37:17 -0400 (EDT) Message-Id: <200004041837.OAA18679@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] FAQ Policy Question In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A54@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1A54@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > I think the FAQ team would be kept too busy with > over-the-shoulder nattering if the "in progress" > work were constantly availble... > > However if the team feels they can live with the > completely open model, that is (of course) up to > them. Well, the completely open model seems to work OK for Linux kernel development. I'm more worried about the opposite problem --- people who *aren't* on the FAQ team getting scared off this list by discussions about where to put some comma. That's why it might be good to have change notices and discussions at that level of detail happen off the main list, in some other forum --- closed or open, I don't care much, so long as there's some kind of more open review for new versions. (I'd argue for openness on the general principle that more eyeballs can't hurt, so long as they're motivated, but with regard to the FAQ, I don't deeply care, so long as review happens *sometime* prior to a full public release). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 14:52:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01295 for dvd-discuss-outgoing; Tue, 4 Apr 2000 14:52:18 -0400 Received: from dial201.roadrunner.com (dial201.cybermesa.com [209.12.75.201]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01292 for ; Tue, 4 Apr 2000 14:52:15 -0400 Received: (from paul@localhost) by dial201.roadrunner.com (8.8.7/8.8.7) id MAA01579 for dvd-discuss@eon.law.harvard.edu; Tue, 4 Apr 2000 12:57:01 -0600 Date: Tue, 4 Apr 2000 12:57:00 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question Message-ID: <20000404125700.A1570@localhost> References: <20000404110228.Z23604@linuxpower.org> <20000404112719.A22137@thud.reric.net> <200004041817.OAA18579@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200004041817.OAA18579@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Apr 04, 2000 at 02:17:00PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 04, 2000 at 02:17:00PM -0400, Robert S. Thau wrote: > Eric Seppanen writes: > > > My answer: After. Again, if this was a software project nobody would > > expect a programmer to announce bugfixes and stuff *before* they went into > > CVS, unless there was some question about how or what should go in. > > Actually, the Apache group used to work *exactly* like that, with, > well... undesirable results. However, many software projects do post > notifications of new commits into CVS, often including diffs showing > exactly what changed --- though these often go to a separate mailing > list, to allow people who don't want to be bothered to opt out. (CVS > can be set up to send these automatically). > > And of course, in a software project, there's a general review before > the latest development version is anointed as fit for public use; > announcements of the test versions usually note what changed, at least > in general terms, so the testers know what to go pound on. That seems > to be the direction in which the discussion is tending here... This is good. It makes things concrete for me. For those who wanted to have a look at the latest mods, they could go grab the current devel version, but announcements of changes would me a little more subdued. Note that I don't think this really involves any change in the level of discussion on dvd-discuss. The old methodology was that we just did things, and announced the results. On a few occasions, like with completely new entries or big rewrites, I posted the question to the list before it was incorporated. Anyone who see a significant issue in the development versions would both have access to them, and be free to post here regarding their concerns. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 15:50:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04585 for dvd-discuss-outgoing; Tue, 4 Apr 2000 15:50:22 -0400 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 PAA04582 for ; Tue, 4 Apr 2000 15:50:07 -0400 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 PAA06811; Tue, 4 Apr 2000 15:51:00 -0400 Message-Id: <200004041951.PAA06811@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Junger v. Daley: 6th Cir. says source code is speech In-reply-to: Your message of "Tue, 04 Apr 2000 14:24:18 EDT." <4.2.2.20000404141632.00cb7a70@law.harvard.edu> Date: Tue, 04 Apr 2000 15:51:00 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for getting the good news out. I heard about just before I had to go to a meeting, and then I had a class, so I have not been able to pass on the news of the victory. I think that it might help in the DVD cases to the extent that they involve a first amendment argument. It can'hurt. DeCSS is expression that is protected by the First Amendment sounds good. -- 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 Tue Apr 4 16:59:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06021 for dvd-discuss-outgoing; Tue, 4 Apr 2000 16:59:05 -0400 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 QAA06014 for ; Tue, 4 Apr 2000 16:58:43 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 4 Apr 2000 14:00:12 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVDCCA "faq" Date: Tue, 4 Apr 2000 14:00:11 -0700 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 Oh, you're trying to say that a shrinkwrap (clickwrap) agreement is a contract and minors can not enter into contracts? This has nothing to do with copywrited materials ... digital or otherwise. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Seth David Schoen [mailto:schoen@loyalty.org] > Sent: Tuesday, April 04, 2000 11:30 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > Richard Hartman writes: > > > > -----Original Message----- > > > From: Seth David Schoen [mailto:schoen@loyalty.org] > > > Sent: Monday, April 03, 2000 8:46 PM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: Re: [dvd-discuss] DVDCCA "faq" > > > > > > > > > Eric Seppanen writes: > > > > > > > While we're at it, don't forget that Jon is a *minor*; he > > > was 16 then and > > > > is 17 now, IIRC. > > > > > > This is not very encouraging -- it could lead to more > > > problematic situations > > > in which minors are supposed to be rigorously kept away > from access to > > > copyrighted materials. > > > > > > > Excuse me? Kept away from access to copyrighted > > materials? That would be every book in the library, > > down to "Green Eggs and Ham" wouldn't it? There must > > be some more specificity to the prohibition that that, > > mustn't there? > > Hmmmm, yeah. > > I should probably say "digital copyrighted information" -- > book publishers > haven't attempted a great deal of shrinkwrap licensing. > > -- > 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 Apr 4 17:11:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA06669 for dvd-discuss-outgoing; Tue, 4 Apr 2000 17:11:22 -0400 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 RAA06666 for ; Tue, 4 Apr 2000 17:11:20 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id OAA17784 for dvd-discuss@eon.law.harvard.edu; Tue, 4 Apr 2000 14:08:01 -0700 Date: Tue, 4 Apr 2000 14:07:59 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000404140759.G23385@cty-alum.org> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Apr 04, 2000 at 02:00:11PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Oh, you're trying to say that a shrinkwrap > (clickwrap) agreement is a contract and minors > can not enter into contracts? This is also true of the majority of software licenses in the world... > This has nothing to do with copywrited > materials ... digital or otherwise. ... and some licenses are going to say, or some attorney's recommendations regarding licenses are going to say, "Keep minors well away from this stuff -- because they can't be bound by this license!". It might be an issue for copyrighted materials in general, because in some jurisdictions minors might not be liable for criminal copyright infringement. -- 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 Apr 4 20:20:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10756 for dvd-discuss-outgoing; Tue, 4 Apr 2000 20:20:05 -0400 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 UAA10753 for ; Tue, 4 Apr 2000 20:20:04 -0400 Received: (qmail 22568 invoked by uid 60001); 5 Apr 2000 00:14:16 -0000 Message-ID: <20000405001416.22567.qmail@web502.mail.yahoo.com> Received: from [24.28.154.65] by web502.mail.yahoo.com; Tue, 04 Apr 2000 17:14:16 PDT Date: Tue, 4 Apr 2000 17:14:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Junger v. Daley: 6th Cir. says source code is speech 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 HOORAY!!!!!!! Free speech advocates everywhere have cause for celebration! Thank you, Prof. Junger for having the courage to stand up for the great principles of freedom. Computer programmers everywhere are indebted to you. Congratulations on this wonderful news. --- "Peter D. Junger" wrote: > > Thanks for getting the good news out. I heard about just before I had > to go to a meeting, and then I had a class, so I have not been able to > pass on the news of the victory. > > I think that it might help in the DVD cases to the extent that they > involve a first amendment argument. It can'hurt. DeCSS is expression > that is protected by the First Amendment sounds good. > __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 20:37:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11263 for dvd-discuss-outgoing; Tue, 4 Apr 2000 20:37:25 -0400 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 UAA11256 for ; Tue, 4 Apr 2000 20:37:24 -0400 Received: (qmail 2431 invoked by uid 60001); 5 Apr 2000 00:25:55 -0000 Message-ID: <20000405002555.2430.qmail@web503.mail.yahoo.com> Received: from [24.28.154.65] by web503.mail.yahoo.com; Tue, 04 Apr 2000 17:25:55 PDT Date: Tue, 4 Apr 2000 17:25:55 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] CNET: Appeal of DVDCCA ruling 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 CNET is running a story that the EFF is appealing in CA. The story is at http://news.cnet.com/news/0-1005-200-1635490.html?tag=st.ne.1002. I can't find anything else about this (nothing yet at the EFF site that I saw). Does anybody have any more infomation? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 20:47:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11679 for dvd-discuss-outgoing; Tue, 4 Apr 2000 20:47:40 -0400 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 UAA11676 for ; Tue, 4 Apr 2000 20:47:35 -0400 Received: from travel-net.com (trj105.travel-net.com [207.176.160.105]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id UAA32656 for ; Tue, 4 Apr 2000 20:49:31 -0400 Message-ID: <38EA8D44.E1F85C4C@travel-net.com> Date: Tue, 04 Apr 2000 20:48:04 -0400 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] CNET: Appeal of DVDCCA ruling References: <20000405002555.2430.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 Oooooops!!! Dave Farber had something on his IP list today but I deleted it. Anyone on this list less quick with the delete key? If I dont see anything posted by tomorrow Ill ask Dave for another copy. Bryan Taylor wrote: > > CNET is running a story that the EFF is appealing in CA. The story is at > http://news.cnet.com/news/0-1005-200-1635490.html?tag=st.ne.1002. > > I can't find anything else about this (nothing yet at the EFF site that I saw). > Does anybody have any more infomation? > > __________________________________________________ > Do You Yahoo!? > Talk to your friends online with Yahoo! Messenger. > http://im.yahoo.com -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 22:33:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13243 for dvd-discuss-outgoing; Tue, 4 Apr 2000 22:33:26 -0400 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 WAA13240 for ; Tue, 4 Apr 2000 22:33:25 -0400 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 WAA11957 for ; Tue, 4 Apr 2000 22:34:29 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA21134; Tue, 4 Apr 2000 22:34:29 -0400 (EDT) Date: Tue, 4 Apr 2000 22:34:29 -0400 (EDT) Message-Id: <200004050234.WAA21134@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" In-Reply-To: <20000404140759.G23385@cty-alum.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> <20000404140759.G23385@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: > > This has nothing to do with copywrited > > materials ... digital or otherwise. > > ... and some licenses are going to say, or some attorney's recommendations > regarding licenses are going to say, "Keep minors well away from this > stuff -- because they can't be bound by this license!". But the Xing license doesn't say anything like that. I can see how that might be a problem for *them* (Johansen is underage, cannot make a contract, and is thus not bound by the bar on reverse engineering), but I'm not sure why you feel it's a problem for us. BTW, congrats and felicitations to Prof. Junger... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 4 23:40:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14437 for dvd-discuss-outgoing; Tue, 4 Apr 2000 23:40:44 -0400 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 XAA14434 for ; Tue, 4 Apr 2000 23:40:43 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id UAA06091 for ; Tue, 4 Apr 2000 20:42:03 -0700 (PDT) Message-ID: <38EAB597.A057C30C@cdpage.com> Date: Tue, 04 Apr 2000 21:40:07 -0600 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] From NetLaw References: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> <20000404140759.G23385@cty-alum.org> <200004050234.WAA21134@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 TOP STORY ~~~~~~~~~ Digital Copyright Law in Limbo By John Roemer Major lawsuits over online copyright issues have been mushrooming of late. Think of the movie industry against the DeCSS hack, the recording industry against Napster, RealNetworks against Streambox, and late last month, Nintendo and other game-makers versus Yahoo. It's easy to group these complaints together as a general battle over how content is distributed online. But not all digital copyright suits concern the same issues. In some cases, part of what's in dispute is a key portion of the copyright law itself, because legislators writing the Digital Millennium Copyright Act two years ago couldn't make up their minds. "They punted, but the questions remain," says David Kramer, a lawyer with Palo Alto, Calif.'s Wilson Sonsini Goodrich & Rosati. In 1998 lawmakers put off deciding until October 2000 how to deal with online technology that controls access to a copyrighted work. They outlawed software tools to defeat the controls, but left the issue in limbo by postponing implementation of a rule prohibiting people from circumventing anti-piracy devices until this fall. They were torn by heavy lobbying from competing commercial and public interest groups. Now, the issue has become even more acute, as the recent litigation makes clear. Those with valuable property to protect, such as Time Warner and the Motion Picture Association of America, want an outright ban on any bypassing of their encryption technology or other anti-piracy techniques. Others, like librarians and academics, fear a strict anti-circumvention rule would choke off the so-called fair use doctrine, which carves out public policy exceptions to a copyright holder's control over his or her work. Historically, "fair use" allows exceptions like copying material for research or quoting part of a work in a review. "Certain technological measures will be used not simply or even primarily to prevent piracy; rather they will be deployed to change the way information is marketed and the way it is paid for," predicts the American Library Association's legislative counsel, Miriam Nisbet. She worries that if Congress decides to ban any circumvention to anti-piracy, companies will require all users to pay any time they wish to download works in digital form. By contrast, Time Warner's senior counsel, Bernard Sorkin, objects that specifying any exemptions whatsoever to the ban "would be an 'open sesame' to widespread and uncontrollable piracy." Nisbet, Sorkin and 233 others on all sides of the rulemaking question have made clear their positions in writing to the U.S. Patent Office. The comment period ended March 31; two public hearings on the issue are scheduled for May at Stanford University and in Washington, D.C. A recommendation to Congress from the Librarian of Congress is due in October. What effect will a clear rule have? If Congress decides to absolutely ban circumvention, case law will still exist that has long upheld the fair use doctrine, and many lawyers will be kept busy wrangling over whether anti-piracy devices should be allowed to trump fair use. But if Congress authorizes some circumvention of technological controls on copyrighted works, then distributors of the DeCSS hack, for example, could try to fit themselves into the exemption. "There's an analogy to VCRs and the photocopier," says copyright specialist Morgan Chu of Irell & Manella in Los Angeles. "Copyright holders called them devices for infringement, but courts held they had substantial non-infringing uses." Wilson Sonsini's Kramer, who obtained a preliminary injunction in federal court in January against two Streambox products on the grounds that they circumvented copy control measures on RealNetworks' RealPlayer, says he's wary of exemptions to the anti-circumvention rule. If there are loopholes, he points out, "all the technology currently against the law will have a legitimate use." Sequel to Cyber Copyright Fight http://www.callaw.com/opinions/stories/edt0327d.html (Paid subscription required) Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures That Control Access to Copyrighted Works http://lcweb.loc.gov/copyright/1201/anticirc.html The Basics of U.S. Copyright Law http://www.gigalaw.com/articles/loc-2000-03-p1.html The Industry Standard newsletters cover the media, stock market, e-commerce, music, law and more. Enter your e-mail address at the following URL and select the newsletters you wish to receive: http://www.standardservices.com/Newsletters/nSubscribe.asp -- 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 Wed Apr 5 08:46:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA22601 for dvd-discuss-outgoing; Wed, 5 Apr 2000 08:46:10 -0400 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 IAA22598 for ; Wed, 5 Apr 2000 08:46:09 -0400 Received: from travel-net.com (trj105.travel-net.com [207.176.160.105]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id IAA32625 for ; Wed, 5 Apr 2000 08:48:10 -0400 Message-ID: <38EB3560.F8F0B8F5@travel-net.com> Date: Wed, 05 Apr 2000 08:45:20 -0400 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] DVDCCA "faq" References: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> <20000404140759.G23385@cty-alum.org> <200004050234.WAA21134@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: > > Seth David Schoen writes: > > > This has nothing to do with copywrited > > > materials ... digital or otherwise. > > > > ... and some licenses are going to say, or some attorney's recommendations > > regarding licenses are going to say, "Keep minors well away from this > > stuff -- because they can't be bound by this license!". > > But the Xing license doesn't say anything like that. I can see how > that might be a problem for *them* (Johansen is underage, cannot make > a contract, and is thus not bound by the bar on reverse engineering), > but I'm not sure why you feel it's a problem for us. Ummmmmm, I think it may be necessary to clarify a few things here... There is a tendency by non-lawyers to hear a legal phrase like the above and try to apply it all over the place including places where it's inapplicable. When you get such urges, it is useful to remember that lawyers went to law school and perhaps bar school for many years. Would they do so if there wasnt something more complicated to learn? In this case, the fact that a valid contract cannot be formed by minors in most jurisdictions doesnt prevent.... ...valid contracts between minors and adults from being formed allllllll the time! A contract is not necessarily a piece of paper. the paper is merely (in most instances except where paper is a strict requirement like buying a house) a document that happens to record the agreement that has already taken place. It is a RECORD of the contract, not the contract per se (getting a headache yet?) And many contracts are concluded without paper. you order some junk food at {fill in the blanks with the name of your favorite junk food emporium). The clerk takes your order. Thats a contract. You are now (in most jurisdictions) bound to receive the goods and pay for them. While in practice, nothing would probably happen if you suddenly decided to eat more upscale and run out before the food arrives, the junk food emporium *could* go after you for breach of contract and demand that you pay up/take possession of the goods and perhaps pay some damages. Note that I am using a deliberately silly example. Also note that most of the world doesnt operate under the principles of common law. The use civil law (and I believe Norway is a civil law jurisdiction). What that means is you usually get to the same result (you are bound to pay for the goods) but not necessarily using the same legal theories. I'll stop now before giving everyone a headache. Why have I bothered with all of this? Just to highlight the complexity of the issue. A shrinkwrap licence with a minor may or may not be a valid contract depending on: a) the contract conditions b) whether those conditions are a matter of public policy or not in either the jurisdiction the minor resides in or the home jurisdiction of the licensor. For example, in most places you cant claim interest rates of 45% per annum and putting it in a shrinkwrap licence doesnt change things. c) the ability of minors to form some kinds of contracts which varies according to the jurisdiction d) if the contract crosses international borders, what laws apply e) who is actually trying the case (where does it actually take place assuming something goes to trial) f) etc. > > BTW, congrats and felicitations to Prof. Junger... Definitely!!!!!!!! > > rst -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 11:39:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00706 for dvd-discuss-outgoing; Wed, 5 Apr 2000 11:39:40 -0400 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 LAA00622 for ; Wed, 5 Apr 2000 11:39:36 -0400 Received: (from paul@localhost) by dial227.roadrunner.com (8.8.7/8.8.7) id JAA00705 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Apr 2000 09:43:48 -0600 Date: Wed, 5 Apr 2000 09:43:47 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] NY and CA cases in the news Message-ID: <20000405094347.B586@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 The NY case, MPAA tries to stop linking by 2600: http://www.wired.com/news/politics/0,1283,35394,00.html The CA case: http://news.cnet.com/news/0-1005-200-1635490.html Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 13:42:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04283 for dvd-discuss-outgoing; Wed, 5 Apr 2000 13:42:28 -0400 Received: from dial134.roadrunner.com (dial134.cybermesa.com [209.12.75.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA04280 for ; Wed, 5 Apr 2000 13:42:23 -0400 Received: (from paul@localhost) by dial134.roadrunner.com (8.8.7/8.8.7) id LAA01175 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Apr 2000 11:45:46 -0600 Date: Wed, 5 Apr 2000 11:45:45 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] LOC Public hearings: Fair uses? Message-ID: <20000405114545.A933@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 The Librarian of Congress public comment process for section 1201(a) is not finished. The next step is public hearings in Washington, DC followed by hearings at the Stanford Law School. The final public comment step will be "post-hearing comments," due June 23rd, 2000, 5:00 p.m. EDT. I am interested in collecting as many seemingly fair uses as possible of media that might be restricted or affected by 17 U.S.C. 1201(a). For those reading this message "later," please don't bother sending suggestions after this June deadline passes --- either we'll be waiting for the fat lady to sing, or she will have already done it. If you have suggestions, please post them to dvd-discuss so that others will know if a particular suggestions has already been made. Fair use is an ill-defined terms, so a comment about its various incarnations is in order. There is statutory fair use, and there is judicial or perhaps common law fair use. I'll discuss statutory fair use to make my request concrete, and I'll omit a discussion of non-statutory fair use becasue 1. I don't know what all of it is, and 2. this message is already too long. Statutory fair use is defined in sections 107 through 120 of Title 17. To a first approximation, fair use takes what would otherwise be an exclusive right of the copyright owner "to do and to authorize," and makes it _not_ an infringement of copyright. The exclusive rights of a copyright owner are exactly the following, as defined in section 106: * (1) to reproduce the copyrighted work in copies or phonorecords; * (2) to prepare derivative works based upon the copyrighted work; * (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; * (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; * (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and * (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. In addition _authors_, as distinct from copyright owners, have certain "Rights of Attribution and Integrity" defined in section 106A. These rights are also subject to statutory fair use. Statutory fair use is not a set or well-defined class of exceptions to the copyright owner's exclusive right "to do and to authorize" activities in 106. Instead section 107 makes an _incomplete_ list of potentially fair uses, and lists factors to be used in determining if a particular use is indeed fair. The incomplete list of potentially fair uses in 107 is: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research The factors to be considered when determining if a particular use, whether in the above list or not, is fair are: * (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. In addition, sections 108 through 120 deal with fair use in more detail in particular circumstances and for particular types of copyrighted works. The statutory fair use exception to rights of attribution and integrity in 106A is governed solely by section 107. Schedule: October 28, 1998 Digital Millennium Copyright Act enacted November 24, 1999 Federal Register notice seeking written comments February 17, 2000 All written comments due March 31, 2000, 5:00 p.m. All reply comments due May 2-4, 2000, 9:30 a.m. Public hearing at Library of Congress, Washington, D.C. May 18-19, 2000, 9:30 a.m. Public hearing at Stanford University, Stanford, California June 23, 2000, 5:00 p.m Post-hearing comments due October 28, 2000 Date of determination Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 14:49:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07532 for dvd-discuss-outgoing; Wed, 5 Apr 2000 14:49:10 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07529 for ; Wed, 5 Apr 2000 14:49:08 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12curD-0001ix-00; Wed, 5 Apr 2000 20:48:51 +0200 Received: from localhost by sites.inka.de with local id 12curG-0003E3-00; Wed, 5 Apr 2000 20:48:54 +0200 Date: Wed, 5 Apr 2000 20:48:54 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC Public hearings: Fair uses? Message-ID: <20000405204854.B12046@inka.de> References: <20000405114545.A933@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000405114545.A933@localhost>; from fenimore@roadrunner.com on Wed, Apr 05, 2000 at 11:45:45AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu According to the slashdot article http://slashdot.org/article.pl?sid=00/04/05/1237247&mode=thread the MPAA has filed another injunction against 2600 to prevent them from linking to sites carrying DeCSS. IIRC the Californian injunction explicitly allows linking, doesn't this have any impact in the NY case? Sham From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 14:54:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07814 for dvd-discuss-outgoing; Wed, 5 Apr 2000 14:54:51 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07811 for ; Wed, 5 Apr 2000 14:54:49 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id OAA28201 for ; Wed, 05 Apr 2000 14:56:35 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Wed, 05 Apr 2000 13:52:14 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Wed, 05 Apr 2000 14:51:38 -0400 From: "Edward Hernstadt" To: , Subject: Re: [dvd-discuss] LOC Public hearings: Fair uses? 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 OAA07812 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu they have moved to expand the injunction to include linking, but that won't be decided for a few weeks. >>> Sham Gardner 04/05/00 02:48PM >>> According to the slashdot article http://slashdot.org/article.pl?sid=00/04/05/1237247&mode=thread the MPAA has filed another injunction against 2600 to prevent them from linking to sites carrying DeCSS. IIRC the Californian injunction explicitly allows linking, doesn't this have any impact in the NY case? Sham From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 15:01:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08087 for dvd-discuss-outgoing; Wed, 5 Apr 2000 15:01:44 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA08084 for ; Wed, 5 Apr 2000 15:01:43 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12cv3O-000262-00; Wed, 5 Apr 2000 21:01:26 +0200 Received: from localhost by sites.inka.de with local id 12cv3O-0003IQ-00; Wed, 5 Apr 2000 21:01:26 +0200 Date: Wed, 5 Apr 2000 21:01:25 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA seeks injunction against linking to DeCSS Message-ID: <20000405210125.C12046@inka.de> References: <20000405114545.A933@localhost> <20000405204854.B12046@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000405204854.B12046@inka.de>; from mail@risctaker.inka.de on Wed, Apr 05, 2000 at 08:48:54PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 05, 2000 at 08:48:54PM +0200, Sham Gardner wrote: > According to the slashdot article > > http://slashdot.org/article.pl?sid=00/04/05/1237247&mode=thread > > the MPAA has filed another injunction against 2600 to prevent them from > linking to sites carrying DeCSS. IIRC the Californian injunction explicitly > allows linking, doesn't this have any impact in the NY case? I'm replying to my own postings now... I meant to correct the subject last time round... From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 15:03:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08251 for dvd-discuss-outgoing; Wed, 5 Apr 2000 15:03:39 -0400 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 PAA08248 for ; Wed, 5 Apr 2000 15:03:38 -0400 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 PAA27652 for ; Wed, 5 Apr 2000 15:03:21 -0400 (EDT) Message-Id: <4.2.2.20000405144700.00cd3e90@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 05 Apr 2000 15:03:05 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] LOC Public hearings: Fair uses? In-Reply-To: <20000405114545.A933@localhost> 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 Some of the comments submitted to the LOC have had specific examples of uses that could be prohibited or found to be "circumvention" under a broad reading of 1201. The library associations made a particularly good list, apparently surveying their member libraries for examples of egregious access/use controls, as did some computer scientists. It's my sense that the LOC has to consider all of these harms in its rulemaking. As Paul suggests, it would be great if this group could produce a similar catalog -- of uses that look like "a good thing" but would be prevented by 1201 without an exemption. If you have had (or are aware of) efforts to use a work frustrated by technological controls, or anticipate that an industry or publisher will impose controls in the near future, please share them here. (The Oracle license was a great example of what publishers would like to do.) The more they look like "fair use" thwarted, the better! --Wendy At 11:45 AM 4/5/00 -0600, you wrote: >The Librarian of Congress public comment process for section 1201(a) is >not finished. > >The next step is public hearings in Washington, DC followed by hearings >at the Stanford Law School. > >The final public comment step will be "post-hearing comments," due June >23rd, 2000, 5:00 p.m. EDT. > >I am interested in collecting as many seemingly fair uses as possible of >media that might be restricted or affected by 17 U.S.C. 1201(a). > >For those reading this message "later," please don't bother sending >suggestions after this June deadline passes --- either we'll be waiting >for the fat lady to sing, or she will have already done it. > >If you have suggestions, please post them to dvd-discuss so that others >will know if a particular suggestions has already been made. > >Fair use is an ill-defined terms, so a comment about its various >incarnations is in order. There is statutory fair use, and there is >judicial or perhaps common law fair use. I'll discuss statutory >fair use to make my request concrete, and I'll omit a discussion of >non-statutory fair use becasue 1. I don't know what all of it is, and >2. this message is already too long. > >Statutory fair use is defined in sections 107 through 120 of Title 17. > >To a first approximation, fair use takes what would otherwise be an >exclusive right of the copyright owner "to do and to authorize," and >makes it _not_ an infringement of copyright. > >The exclusive rights of a copyright owner are exactly the following, as >defined in section 106: > > * (1) to reproduce the copyrighted work in copies or > phonorecords; > > * (2) to prepare derivative works based upon the copyrighted > work; > > * (3) to distribute copies or phonorecords of the copyrighted > work to the public by sale or other transfer of ownership, or by > rental, lease, or lending; > > * (4) in the case of literary, musical, dramatic, and > choreographic works, pantomimes, and motion pictures and other > audiovisual works, to perform the copyrighted work publicly; > > * (5) in the case of literary, musical, dramatic, and > choreographic works, pantomimes, and pictorial, graphic, or > sculptural works, including the individual images of a motion > picture or other audiovisual work, to display the copyrighted > work publicly; and > > * (6) in the case of sound recordings, to perform the copyrighted > work publicly by means of a digital audio transmission. > >In addition _authors_, as distinct from copyright owners, have certain >"Rights of Attribution and Integrity" defined in section 106A. These >rights are also subject to statutory fair use. > >Statutory fair use is not a set or well-defined class of exceptions to >the copyright owner's exclusive right "to do and to authorize" activities >in 106. Instead section 107 makes an _incomplete_ list of potentially fair >uses, and lists factors to be used in determining if a particular use is >indeed fair. The incomplete list of potentially fair uses in 107 is: > > criticism, comment, news reporting, teaching (including multiple copies > for classroom use), scholarship, or research > >The factors to be considered when determining if a particular use, whether >in the above list or not, is fair are: > > * (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. The fact that a work is unpublished > shall not itself bar a finding of fair use if such finding is made > upon consideration of all the above factors. > >In addition, sections 108 through 120 deal with fair use in more detail >in particular circumstances and for particular types of copyrighted works. > >The statutory fair use exception to rights of attribution and integrity >in 106A is governed solely by section 107. > >Schedule: > > October 28, 1998 Digital Millennium Copyright Act enacted > November 24, 1999 Federal Register notice seeking written comments > February 17, 2000 All written comments due > March 31, 2000, 5:00 p.m. All reply comments due > May 2-4, 2000, 9:30 a.m. Public hearing at Library of Congress, > Washington, D.C. > May 18-19, 2000, 9:30 a.m. Public hearing at Stanford University, > Stanford, California > June 23, 2000, 5:00 p.m Post-hearing comments due > October 28, 2000 Date of determination > > >Paul Fenimore 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 Wed Apr 5 16:32:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14003 for dvd-discuss-outgoing; Wed, 5 Apr 2000 16:32:50 -0400 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 QAA14000 for ; Wed, 5 Apr 2000 16:32:48 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id NAA16124 for ; Wed, 5 Apr 2000 13:32:35 -0700 (PDT) Message-ID: <38EBA26B.A644D032@cdpage.com> Date: Wed, 05 Apr 2000 14:30:35 -0600 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] LOC Public hearings: Fair uses? References: <4.2.2.20000405144700.00cd3e90@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: > If you have had (or are aware of) efforts to > use a work frustrated by technological controls, or anticipate that an > industry or publisher will impose controls in the near future, please share > them here. One that comes immediately to mind is the difficulty we encounter with the DVD Discus Awards. We create a presentation with excerpts of the nominated and winning titles, to show during the awards ceremony. To do this, we have to request unencrypted clips from the copyright owners for up to 150 nominated titles, not all of which we will use. Not all nominees are eager to comply. Furthermore, this doesn't allow us to extract the parts we'd like to show, for which the awards are given. Another example would be training seminars for DVD design and authoring. You can't just create a seamless presentation, using clips to illustrate certain techniques - you have to load one DVD at a time and navigate to the desired scene or screen element. -- 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 Wed Apr 5 16:53:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14901 for dvd-discuss-outgoing; Wed, 5 Apr 2000 16:53:06 -0400 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 QAA14897 for ; Wed, 5 Apr 2000 16:53:02 -0400 Received: from travel-net.com (trj105.travel-net.com [207.176.160.105]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id QAA00521 for ; Wed, 5 Apr 2000 16:52:22 -0400 Message-ID: <38EBA768.456222C2@travel-net.com> Date: Wed, 05 Apr 2000 16:51:52 -0400 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: [dvd-discuss] [Fwd: IP: DVDs & Apex] Content-Type: multipart/mixed; boundary="------------0B07CDD8D84B0E2A446F1C0D" 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. --------------0B07CDD8D84B0E2A446F1C0D Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Forwarded with permission. -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com --------------0B07CDD8D84B0E2A446F1C0D Content-Type: message/rfc822 Content-Transfer-Encoding: 8bit Content-Disposition: inline Return-Path: Received: from admin.listbox.com (admin.listbox.com [208.210.124.36]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id LAA02134 for ; Wed, 5 Apr 2000 11:25:40 -0400 Received: by admin.listbox.com (Postfix) id CA997278F1; Wed, 5 Apr 2000 11:24:40 -0400 (EDT) Delivered-To: ip-sub-1-outgoing@listbox.com Received: by admin.listbox.com (Postfix, from userid 509) id BBC3A278B0; Wed, 5 Apr 2000 11:24:40 -0400 (EDT) Delivered-To: ip-sub-1@majordomo.pobox.com Mime-Version: 1.0 X-Sender: farber@165.135.0.253 Message-Id: X-Priority: 1 (Highest) Date: Wed, 5 Apr 2000 11:23:13 -0400 To: ip-sub-1@majordomo.pobox.com From: David Farber Subject: IP: DVDs & Apex Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Sender: owner-ip-sub-1@admin.listbox.com Precedence: list Reply-To: farber@cis.upenn.edu Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by mail.travel-net.com id LAA02134 X-Mozilla-Status2: 00000000 >X-Priority: 1 (Highest) >Date: Wed, 5 Apr 2000 11:12:22 -0400 >To: farber@cis.upenn.edu (David Farber) >From: "Richard J. Solomon" > >Dave: > >Well, after I woke up in the middle of the night from my 24 hour >journey from Land's End in Cornwall, UK, to Massachusetts, I tested >my new Region 2 & 4 "PAL" CDs on the Apex 600A, the hot, region >circumventable available until recently at Circuit City >. They work great! > >First of all, the PAL/NTSC designations on DVDs encoded with MPEG-2 >are phony. There is no such thing. All the MPEG-2 DVDs are the same >as to encoding, including SECAM. What is different is how the DVD >player outputs the signal, and the aspect ratio (which is often an >option). The Apex outputs either NTSC or PAL, (or RGB component to a >computer monitor, for that matter), and a choice of aspect ratios. >So the "PAL" DVDs that I just bought in London & the "SECAM" in >Lille, France, worked fine on my NTSC system. Better than that, they >looked like HDTV on my interlaced 27" set at couch potato distances. >My ProLogic surround sound system didn't hurt either, but with a >stereo TV isn't really essential. > >Apex says they will change the codes, but the codes are built into >the remote, which I understand is true of almost all the DVD >players. Only the box is different. Since the code is just an >elemental key -- easy enough for a junior-high computer scientist to >figure out -- it doesn't sound like Hollywood has a chance to >effectively restrict region hopping. Of course, the reason they did >this in the first place is that they charge double or triple for the >same DVDs in Europe than they do in the U.S. I bought a Region 2/4 >PAL "The Big Lubowski" (our family favorite) for £19 (> $35) -- it >sells discounted in the U.S. for around $12. I did find a store that >gave me a two-for-one deal (still priced), so I also got "Citizen >Kane" in B&W, marked "PAL only", which is nonsense for a monochrome >video. B.S. I also got some railroad steam DVDs made in China and >Europe that I don't think I can easily get in the U.S. Oddly, the >Chinese Steam video (excellent quality if you only look at the >pictures -- the soundtrack was pure hilarious Communist propaganda) >was marked Region 2 "NTSC". That's because its primary market is >probably Japan which is NSTC, but Region 2 like Europe. (The U.S. is >Region 1.) Weird. > >All in all, the Region nonsense is bound to fail. I visited a major >display manufacturer on the Continenet and they felt the policy was >against any manufacturers' interest to support. It also is not good >for independent producers -- just the majors who wish to practice >discriminate (called by economists, "Ramsey") pricing. > >BTW, while it is illegal to sell Region 1 DVDs in UK stores that are >licensed by the movie industry, it is not illegal to buy them via >mail order from the U.S., and it is not illegal to modify your >Region 2 DVD player to play all regions. Chips are available for >just that, but it is easier to just re-program the players from the >remote. > >Richard --------------0B07CDD8D84B0E2A446F1C0D-- From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 16:54:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15026 for dvd-discuss-outgoing; Wed, 5 Apr 2000 16:54:18 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA15023 for ; Wed, 5 Apr 2000 16:54:17 -0400 Received: by host100.56jfk.com with Internet Mail Service (5.5.2650.21) id ; Wed, 5 Apr 2000 16:55:16 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C16@host100.56jfk.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] LOC Public hearings: Fair uses? Date: Wed, 5 Apr 2000 16:55:16 -0400 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 Using an emulator to access software for an obsolete computer system often requires changes to the software or circumvention of copy protection measures. Often such original hardware is either impractical or unavailable. -----Original Message----- From: Wendy Seltzer [mailto:wendy@seltzer.com] Sent: Wednesday, April 05, 2000 3:03 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC Public hearings: Fair uses? Some of the comments submitted to the LOC have had specific examples of uses that could be prohibited or found to be "circumvention" under a broad reading of 1201. From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 17:26:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA17003 for dvd-discuss-outgoing; Wed, 5 Apr 2000 17:26:53 -0400 Received: from web220.mail.yahoo.com (web220.mail.yahoo.com [128.11.68.120]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA17000 for ; Wed, 5 Apr 2000 17:26:52 -0400 Message-ID: <20000405212635.14174.rocketmail@web220.mail.yahoo.com> Received: from [209.206.60.194] by web220.mail.yahoo.com; Wed, 05 Apr 2000 14:26:35 PDT Date: Wed, 5 Apr 2000 14:26:35 -0700 (PDT) From: Marcia Wilbur Subject: [dvd-discuss] second injunction 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 http://www.wired.com/news/politics/0,1283,35394,00.html "On Wednesday, the MPAA filed a complaint in district court in New York requesting a second injunction against Corley, this time to stop the his 2600 Enterprises websites from linking to hundreds of sites with the DVD encryption-busting DeCSS program." ----------------------------------- Where were the third party limitations exclusions again? ===== http://www.merchantsave.com/3d.html __________________________________________________ Do You Yahoo!? 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Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 19:27:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA21089 for dvd-discuss-outgoing; Wed, 5 Apr 2000 19:27:34 -0400 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 TAA21082 for ; Wed, 5 Apr 2000 19:27:31 -0400 Received: from jy01 (user-2inihh3.dialup.mindspring.com [165.121.70.35]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id TAA20848 for ; Wed, 5 Apr 2000 19:27:14 -0400 (EDT) Message-Id: <200004052327.TAA20848@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 05 Apr 2000 19:18:08 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] MPAA seeks injunction against linking to DeCSS In-Reply-To: <20000405210125.C12046@inka.de> References: <20000405204854.B12046@inka.de> <20000405114545.A933@localhost> <20000405204854.B12046@inka.de> 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 Sham Gardner wrote: > the MPAA has filed another injunction against 2600 to prevent them from > linking to sites carrying DeCSS. IIRC the Californian injunction explicitly > allows linking, doesn't this have any impact in the NY case? In the NY suit hearing MPAA counsel attempted to get Judge Kaplan to include linking in the initial injunction but he refused. Defendants counsel object to its inclusion. Judge Kaplan said he would consider a separate application from the plaintiffs on that point. That exchange occurs near the end of the hearing transcript. Kaplan emphasized that his views under DMCA were stricter than the California Court's, but in refusing to grant an injunction against linking he preceded the California decision to allow linking. Whether he will now add linking to the injunction will lead to a swell dispute in court. and perhaps another lengthy opinion now that he's had a few weeks to gird for more slaught. It will be a swell sight to see Emmanuel and supporters wearing their newly minted T-shirts at the hearing -- barely visible under Sim's suits. DeCSS on eyelids is a wonder to behold, blink, blink, double-take. From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 5 20:33:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24273 for dvd-discuss-outgoing; Wed, 5 Apr 2000 20:33:32 -0400 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 UAA24270 for ; Wed, 5 Apr 2000 20:33:31 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 12d0F8-0002yc-00 for ; Wed, 05 Apr 2000 19:33:54 -0500 Date: Wed, 5 Apr 2000 19:33:54 -0500 (CDT) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] second injunction In-Reply-To: <20000405212635.14174.rocketmail@web220.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, 5 Apr 2000, Marcia Wilbur wrote: > http://www.wired.com/news/politics/0,1283,35394,00.html > > "On Wednesday, the MPAA filed a complaint in district > court in New York requesting a second injunction > against Corley, this time to stop the his 2600 > Enterprises websites from linking to hundreds of sites > with the DVD encryption-busting DeCSS program." Correct me if I am wrong, but if linking to DeCSS web sites is considered contempt, wouldn't the CA courthouse web site be in contempt? The courthouse does have the DVD-CA case filings on their website which lists the URL's of 500 DeCSS mirrors. Heck, I wonder if the MPAA posts their legal documents online. If so, they would be in contempt themselves! Or am I totally off-base here? =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Wed, 5 Apr 2000 20:45:42 -0400 Received: (qmail 13098 invoked by uid 502); 5 Apr 2000 23:47:18 -0000 Date: Wed, 5 Apr 2000 19:47:18 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] second injunction Message-ID: <20000405194718.A1139@linuxpower.org> References: <20000405212635.14174.rocketmail@web220.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Tim Neu on Wed, Apr 05, 2000 at 07:33:54PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 05, 2000 at 07:33:54PM -0500, Tim Neu wrote: > > On Wed, 5 Apr 2000, Marcia Wilbur wrote: > > > http://www.wired.com/news/politics/0,1283,35394,00.html > > > > "On Wednesday, the MPAA filed a complaint in district > > court in New York requesting a second injunction > > against Corley, this time to stop the his 2600 > > Enterprises websites from linking to hundreds of sites > > with the DVD encryption-busting DeCSS program." > > Correct me if I am wrong, but if linking to DeCSS web sites is considered > contempt, wouldn't the CA courthouse web site be in contempt? The > courthouse does have the DVD-CA case filings on their website which > lists the URL's of 500 DeCSS mirrors. > > Heck, I wonder if the MPAA posts their legal documents online. If so, > they would be in contempt themselves! > > Or am I totally off-base here? An injunction only applies to the individuals listed on the injunction and their associates. There are many, many, many people that simply have nothing to do with these injunctions; they are free to post whatever they want. I assume the CA courthouse isn't listed on the injunction, or could be said to be an associate of Corley. -- 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 Apr 6 03:11:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA03989 for dvd-discuss-outgoing; Thu, 6 Apr 2000 03:11:21 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA03986 for ; Thu, 6 Apr 2000 03:11:20 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12d6RP-0001eQ-00; Thu, 6 Apr 2000 09:10:59 +0200 Received: from localhost by sites.inka.de with local id 12d6RQ-0005cZ-00; Thu, 6 Apr 2000 09:11:00 +0200 Date: Thu, 6 Apr 2000 09:11:00 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [Fwd: IP: DVDs & Apex] Message-ID: <20000406091100.A21405@inka.de> References: <38EBA768.456222C2@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <38EBA768.456222C2@travel-net.com>; from dstein@travel-net.com on Wed, Apr 05, 2000 at 04:51:52PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >First of all, the PAL/NTSC designations on DVDs encoded with MPEG-2 > >are phony. There is no such thing. I may have just been deluding myself, but when I played "NTSC" DVDs in PAL I thought I could see motion artifacts suggesting that a recording stored at 60Hz (NTSC) was being played at 50 (PAL). > >BTW, while it is illegal to sell Region 1 DVDs in UK stores that are > >licensed by the movie industry, It isn't here in Germany. At least every major store selling DVDs I've seen here sells Region 1 as well as 2. Sham From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 04:16:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05022 for dvd-discuss-outgoing; Thu, 6 Apr 2000 04:16:54 -0400 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 EAA05019 for ; Thu, 6 Apr 2000 04:16:51 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id BAA19825 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 01:12:04 -0700 Date: Thu, 6 Apr 2000 01:12:02 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] AGC copy protection in VCRs Message-ID: <20000406011202.F23385@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 According to the DMCA, new VCRs which don't implement the automatic gain control copy protection scheme are supposed to become illegal at the end of this month. I was inclined to put out an advisory about this. Is there someone here who is familiar enough to tell me more about what AGC copy protection is, how it works, and which current VCRs do or don't implement AGC copy protection and other analog copy protection schemes? -- 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 Apr 6 04:20:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05145 for dvd-discuss-outgoing; Thu, 6 Apr 2000 04:20:20 -0400 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 EAA05142 for ; Thu, 6 Apr 2000 04:20:18 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id BAA19844 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 01:15:35 -0700 Date: Thu, 6 Apr 2000 01:15:33 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVDCCA "faq" Message-ID: <20000406011533.G23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A56@mail2.onetouch.com> <20000404140759.G23385@cty-alum.org> <200004050234.WAA21134@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004050234.WAA21134@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Apr 04, 2000 at 10:34:29PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > Seth David Schoen writes: > > > This has nothing to do with copywrited > > > materials ... digital or otherwise. > > > > ... and some licenses are going to say, or some attorney's recommendations > > regarding licenses are going to say, "Keep minors well away from this > > stuff -- because they can't be bound by this license!". > > But the Xing license doesn't say anything like that. I can see how > that might be a problem for *them* (Johansen is underage, cannot make > a contract, and is thus not bound by the bar on reverse engineering), > but I'm not sure why you feel it's a problem for us. It's not a problem for the defense in this case -- it's a problem for minors in the future. > BTW, congrats and felicitations to Prof. Junger... Yes, indeed. -- 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 Apr 6 04:31:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05446 for dvd-discuss-outgoing; Thu, 6 Apr 2000 04:31:46 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA05443 for ; Thu, 6 Apr 2000 04:31:43 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12d7hI-00049F-00; Thu, 6 Apr 2000 10:31:28 +0200 Received: from localhost by sites.inka.de with local id 12d7hK-0006nj-00; Thu, 6 Apr 2000 10:31:30 +0200 Date: Thu, 6 Apr 2000 10:31:30 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] AGC copy protection in VCRs Message-ID: <20000406103130.A25310@inka.de> References: <20000406011202.F23385@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000406011202.F23385@cty-alum.org>; from schoen@loyalty.org on Thu, Apr 06, 2000 at 01:12:02AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I was inclined to put out an advisory about this. Is there someone > here who is familiar enough to tell me more about what AGC copy protection > is, how it works, and which current VCRs do or don't implement AGC copy > protection and other analog copy protection schemes? This is from memory and may not be enirely accurate: Macrovision (is this the same as AGC?) exploits as feature in modern VCRs which compensates for brightness fuctuations. The brightness of a line outside the visible picture alternates between very bright (above the normal maximum for the PAL and presumeably NTSC standard) and very dark. The recording VCR compensates by varying the brightness of the entire frame, resulting in a bad recording. Older VCRs ( > 10 years?) are not affected, as they lack the brightness compensation feature. However the resulting copy retains the protection. Cheap (mine cost the equivalent of about 20$) external boxes are available which remove the protection. In theory, since the offending line is outside the visible picture, the protection has no effect on viewing, as opposed to recording. However, in practise this is sometimes not the case. I have a TVCR which has no problems with Macrovisioned tapes played in its inbuilt VCR, but when it tries to display the output from the same tape from an external VCR there is a noticeable change in brightness every few seconds. Sham From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 10:46:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12497 for dvd-discuss-outgoing; Thu, 6 Apr 2000 10:46:14 -0400 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 KAA12494 for ; Thu, 6 Apr 2000 10:46:10 -0400 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 KAA10970 for ; Thu, 6 Apr 2000 10:45:52 -0400 (EDT) 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 KAA08015 for ; Thu, 6 Apr 2000 10:42:32 -0400 (EDT) Mime-Version: 1.0 X-Sender: reinhold@world.std.com (Unverified) Message-Id: In-Reply-To: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Date: Thu, 6 Apr 2000 10:42:13 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] An Outline -- equal protection clause 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'd like to suggest another argument under item 3 of the draft outline: that 1201 violates the equal protection clause because it imposes an undue burden on linguistic and cultural minorities. This burden is demonstrated by CSS zoning. People who speak other languages or who wish to instruct their children in the language of their ethnic heritage are forced to purchase additional DVD players to view DVD content in those languages. In some cases, e.g. Spanish, they may need two additional players (for Latin American and European zones). While English speakers will enjoy availability of a full range of media products, U.S. distribution of media in foreign languages will be limited or nonexistent because of the lack of players. In effect, 1201 permits a private organization to tax the import of non-English speech. Arnold Reinhold > >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 > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 10:54:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12701 for dvd-discuss-outgoing; Thu, 6 Apr 2000 10:54:45 -0400 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 KAA12698 for ; Thu, 6 Apr 2000 10:54:43 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 12dDgM-0000fD-00 for ; Thu, 06 Apr 2000 09:54:54 -0500 Date: Thu, 6 Apr 2000 09:54:53 -0500 (CDT) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] AGC copy protection in VCRs In-Reply-To: <20000406011202.F23385@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 Thu, 6 Apr 2000, Seth David Schoen wrote: > According to the DMCA, new VCRs which don't implement the automatic gain > control copy protection scheme are supposed to become illegal at the end > of this month. > > I was inclined to put out an advisory about this. Is there someone > here who is familiar enough to tell me more about what AGC copy protection > is, how it works, and which current VCRs do or don't implement AGC copy > protection and other analog copy protection schemes? http://www.repairfaq.org/filipg/LINK/F_MacroVision1.html =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Thu, 6 Apr 2000 11:21:25 -0400 Received: (from paul@localhost) by dial236.roadrunner.com (8.8.7/8.8.7) id JAA00661 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 09:24:51 -0600 Date: Thu, 6 Apr 2000 09:24:51 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] AGC copy protection in VCRs Message-ID: <20000406092450.A558@localhost> References: <20000406011202.F23385@cty-alum.org> <20000406103130.A25310@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406103130.A25310@inka.de>; from mail@risctaker.inka.de on Thu, Apr 06, 2000 at 10:31:30AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 10:31:30AM +0200, Sham Gardner wrote: > > I was inclined to put out an advisory about this. Is there someone > > here who is familiar enough to tell me more about what AGC copy protection > > is, how it works, and which current VCRs do or don't implement AGC copy > > protection and other analog copy protection schemes? > > This is from memory and may not be enirely accurate: > > Macrovision (is this the same as AGC?) exploits as feature in modern VCRs The dvdfaq says that AGC is a _part_ of Macrovision, the other part being a rapid modulation of the colorburst signal ("colorstripe"). > which compensates for brightness fuctuations. The brightness of a line > outside the visible picture alternates between very bright (above the normal > maximum for the PAL and presumeably NTSC standard) and very dark. The > recording VCR compensates by varying the brightness of the entire frame, > resulting in a bad recording. Older VCRs ( > 10 years?) are not affected, as > they lack the brightness compensation feature. However the resulting copy > retains the protection. Cheap (mine cost the equivalent of about 20$) > external boxes are available which remove the protection. > > In theory, since the offending line is outside the visible picture, the > protection has no effect on viewing, as opposed to recording. However, in > practise this is sometimes not the case. I have a TVCR which has no problems > with Macrovisioned tapes played in its inbuilt VCR, but when it tries to > display the output from the same tape from an external VCR there is a > noticeable change in brightness every few seconds. I've not seen this, but have definitely heard other people claim that Macrovision adversely affects "TV" pictures. That's saying a lot because the picture is pretty bad to begin with... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 12:21:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14907 for dvd-discuss-outgoing; Thu, 6 Apr 2000 12:21:29 -0400 Received: from dial236.roadrunner.com (dial236.cybermesa.com [209.12.75.236]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14904 for ; Thu, 6 Apr 2000 12:21:26 -0400 Received: (from paul@localhost) by dial236.roadrunner.com (8.8.7/8.8.7) id KAA00853 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 10:24:53 -0600 Date: Thu, 6 Apr 2000 10:24:52 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause Message-ID: <20000406102451.A818@localhost> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from reinhold@world.std.com on Thu, Apr 06, 2000 at 10:42:13AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 10:42:13AM -0400, Arnold G. Reinhold wrote: > I'd like to suggest another argument under item 3 of the draft > outline: that 1201 violates the equal protection clause because it > imposes an undue burden on linguistic and cultural minorities. > > This burden is demonstrated by CSS zoning. People who speak other > languages or who wish to instruct their children in the language of > their ethnic heritage are forced to purchase additional DVD players > to view DVD content in those languages. In some cases, e.g. Spanish, > they may need two additional players (for Latin American and European > zones). While English speakers will enjoy availability of a full > range of media products, U.S. distribution of media in foreign > languages will be limited or nonexistent because of the lack of > players. In effect, 1201 permits a private organization to tax the > import of non-English speech. I think there are two possibilities here: 1. If region codes are not an "access control," then the state has not endorsed them. However, one could attack them on restraint of trade grounds. 2. If region codes are an "access control," then in enacting s.1201, the state has done what you are suggesting. >From Meyer v. Nebraska 262 U.S. 390 (1923). supra at 399: While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The Meyer decision is referencing the 14th as authority for this decision. One other pertinent decision is Pierce v. Society of Sisters 268 U.S. 510 (1925). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 12:31:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15515 for dvd-discuss-outgoing; Thu, 6 Apr 2000 12:31:51 -0400 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 MAA15512 for ; Thu, 6 Apr 2000 12:31:50 -0400 Received: (qmail 32571 invoked by uid 502); 6 Apr 2000 15:33:39 -0000 Date: Thu, 6 Apr 2000 11:33:38 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause Message-ID: <20000406113338.H30403@linuxpower.org> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Arnold G. Reinhold on Thu, Apr 06, 2000 at 10:42:13AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 10:42:13AM -0400, Arnold G. Reinhold wrote: > > This burden is demonstrated by CSS zoning. People who speak other > languages or who wish to instruct their children in the language of > their ethnic heritage are forced to purchase additional DVD players > to view DVD content in those languages. In some cases, e.g. Spanish, > they may need two additional players (for Latin American and European > zones). While English speakers will enjoy availability of a full > range of media products, U.S. distribution of media in foreign > languages will be limited or nonexistent because of the lack of > players. In effect, 1201 permits a private organization to tax the > import of non-English speech. Region coding isn't based on language, it's based on regional distribution. While, admittedly, there would be more Spanish-speaking DVD's in Spain than in the United States, I don't believe there's anything inherent in the concept of region coding itself that bars content on cultural or linguistic grounds. You can logically claim that without region coding, such instruction would be easier, but saying that region coding prevents cultural instruction isn't technically true, per se. At the most, it makes it more challenging. Does anyone have any idea how many (if any) foreign films, in the original language, are pressed on region-coded DVD in the US? -- 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 Apr 6 12:48:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16080 for dvd-discuss-outgoing; Thu, 6 Apr 2000 12:48:08 -0400 Received: from web220.mail.yahoo.com (web220.mail.yahoo.com [128.11.68.120]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA16077 for ; Thu, 6 Apr 2000 12:48:06 -0400 Message-ID: <20000406164751.21983.rocketmail@web220.mail.yahoo.com> Received: from [209.206.60.128] by web220.mail.yahoo.com; Thu, 06 Apr 2000 09:47:51 PDT Date: Thu, 6 Apr 2000 09:47:51 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] second injunction 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 Tim, here's another good question for the future: who is ultimately responsible for the sites/links. As a web developer myself, if a client wants me to create a link and upload decss...am I liable or they? AND what about if an "evil" webmaster decides to upload a file like DeCSS and place a link on a site of some unsuspecting computer novice? so, how do you place responsibility on a link or upload on another server? Futhermore, I contend that the court and MPAA are "OFFERING" "PROVIDING" the DeCSS as much as GOOGLE, Corely, and Yahoo! and yes Providing, Offering IS the issue. -marcia wilbur --- Tim Neu wrote: > > On Wed, 5 Apr 2000, Marcia Wilbur wrote: > > > > http://www.wired.com/news/politics/0,1283,35394,00.html > > > > "On Wednesday, the MPAA filed a complaint in > district > > court in New York requesting a second injunction > > against Corley, this time to stop the his 2600 > > Enterprises websites from linking to hundreds of > sites > > with the DVD encryption-busting DeCSS program." > > Correct me if I am wrong, but if linking to DeCSS > web sites is considered > contempt, wouldn't the CA courthouse web site be in > contempt? The > courthouse does have the DVD-CA case filings on > their website which > lists the URL's of 500 DeCSS mirrors. > > Heck, I wonder if the MPAA posts their legal > documents online. If so, > they would be in contempt themselves! > > Or am I totally off-base here? > > =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- > ______ _ __ "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 > / <_/ / / < / (_ http://www.visi.com/~tneu -- > > ===== http://www.merchantsave.com/3d.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 Apr 6 13:12:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16706 for dvd-discuss-outgoing; Thu, 6 Apr 2000 13:12:38 -0400 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 NAA16703 for ; Thu, 6 Apr 2000 13:12:36 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA30821 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 12:12:21 -0500 Date: Thu, 6 Apr 2000 12:12:21 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause Message-ID: <20000406121221.A30769@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000406102451.A818@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000406102451.A818@localhost>; from fenimore@roadrunner.com on Thu, Apr 06, 2000 at 10:24:52AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 10:24:52AM -0600, Paul Fenimore wrote: > On Thu, Apr 06, 2000 at 10:42:13AM -0400, Arnold G. Reinhold wrote: > > I'd like to suggest another argument under item 3 of the draft > > outline: that 1201 violates the equal protection clause because it > > imposes an undue burden on linguistic and cultural minorities. > > > > I think there are two possibilities here: > > 1. If region codes are not an "access control," then the state has not > endorsed them. However, one could attack them on restraint of trade > grounds. > > 2. If region codes are an "access control," then in enacting s.1201, the > state has done what you are suggesting. I would venture that it's neither of the two, but rather: 3. The state has afforded protection to a packaging method, with no requirement that that method implement _only_ the restraints needed (in this case, needed to hinder copyright infringement). In other words, by using the law to shield "access controls", there is an opportunity for creators of "access controls" to bundle in unwanted baggage. The baggage, since it's included in the access control hardware or software, effectively gains legal shielding as well. If 1201 stands the amount of baggage that companies try to sneak into their "access controls" will undoubtedly rise. I suppose the legal argument would be "1201 is unconstitutional or unworkable because it defines protections for an extremely vague set of technologies. Because these technologies can be used to infringe on fair use, trade, and consumer rights and privacy, the set of protections must be held to the highest standards of clarity, and the law as written cannot be interpreted in any reasonable way." But then, IANAL, so maybe I shouldn't even try... :) Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 14:29:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18677 for dvd-discuss-outgoing; Thu, 6 Apr 2000 14:29:42 -0400 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 OAA18674 for ; Thu, 6 Apr 2000 14:29:42 -0400 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 OAA24068 for ; Thu, 6 Apr 2000 14:29:28 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA00810; Thu, 6 Apr 2000 14:29:27 -0400 (EDT) Date: Thu, 6 Apr 2000 14:29:27 -0400 (EDT) Message-Id: <200004061829.OAA00810@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause In-Reply-To: <20000406121221.A30769@thud.reric.net> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000406102451.A818@localhost> <20000406121221.A30769@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > In other words, by using the law to shield "access controls", there is an > opportunity for creators of "access controls" to bundle in unwanted > baggage. The baggage, since it's included in the access control hardware > or software, effectively gains legal shielding as well. There's an implicit assumption here that the law allows copyright owners to restrict who can implement their access controls, and in doing so, require them to implement the unwanted baggage as well. Once again, there's a *lot* in the legislative history that shows that Congress did not mean for the law to be read that way, and even added an amendment to the bill to try to preclude that reading (codified as 17 USC 1201(c)(3)). >From the conference committee report: Persons may also choose to implement a technological measure without vetting it through an inter-industry consultative process, or without regard to the input of affected parties. I posted a fairly long note on the topic some time ago, http://eon.law.harvard.edu/archive/dvd-discuss/msg01908.html rst From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 15:25:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19769 for dvd-discuss-outgoing; Thu, 6 Apr 2000 15:25:40 -0400 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 PAA19766 for ; Thu, 6 Apr 2000 15:25:37 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA31102 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 14:25:19 -0500 Date: Thu, 6 Apr 2000 14:25:19 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause Message-ID: <20000406142519.A31060@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000406102451.A818@localhost> <20000406121221.A30769@thud.reric.net> <200004061829.OAA00810@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: <200004061829.OAA00810@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Thu, Apr 06, 2000 at 02:29:27PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 02:29:27PM -0400, Robert S. Thau wrote: > Eric Seppanen writes: > > In other words, by using the law to shield "access controls", there is an > > opportunity for creators of "access controls" to bundle in unwanted > > baggage. The baggage, since it's included in the access control hardware > > or software, effectively gains legal shielding as well. > > There's an implicit assumption here that the law allows copyright > owners to restrict who can implement their access controls, and in > doing so, require them to implement the unwanted baggage as well. > Once again, there's a *lot* in the legislative history that shows that > Congress did not mean for the law to be read that way, and even added > an amendment to the bill to try to preclude that reading (codified as > 17 USC 1201(c)(3)). > > >From the conference committee report: > > Persons may also choose to implement a technological > measure without vetting it through an inter-industry > consultative process, or without regard to the input of > affected parties. > > I posted a fairly long note on the topic some time ago, > > http://eon.law.harvard.edu/archive/dvd-discuss/msg01908.html I liked it the first time I read it and still do. I agree the legislative history supports the claim that 1201 was not meant to be a requirement for hardware and software designers to include access controls at the demand of copyright owners. But they seem to be blindly ignoring the route that the copyright owners took: demand an industry standards group (DVD Forum) design in their "access control" mechanism and require it of licensed designers (enforced with trade secrets, patents, etc.) This isn't covered under 1201. Since the route taken isn't covered by 1201, it's kind of hard to argue that the manufacturer requirements are an abuse of that law. I think the key to my argument is that "access controls" can effectively be used as a vehicle for anything the MPAA/DVD Forum partnership agrees upon. We can't prevent the partnership, but affording legal protection for anything included in their vehicle is something that we _can_ fight. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 15:26:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19832 for dvd-discuss-outgoing; Thu, 6 Apr 2000 15:26:20 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19829 for ; Thu, 6 Apr 2000 15:26:18 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id PAA29628 for ; Thu, 06 Apr 2000 15:27:53 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Thu, 06 Apr 2000 14:23:30 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 06 Apr 2000 15:23:12 -0400 From: "Edward Hernstadt" To: , Subject: Re: [dvd-discuss] second injunction 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 PAA19830 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu does anyone know the url of the CA courthouse website posting DeCSS addresses? >>> 04/05/00 07:47PM >>> On Wed, Apr 05, 2000 at 07:33:54PM -0500, Tim Neu wrote: > > On Wed, 5 Apr 2000, Marcia Wilbur wrote: > > > http://www.wired.com/news/politics/0,1283,35394,00.html > > > > "On Wednesday, the MPAA filed a complaint in district > > court in New York requesting a second injunction > > against Corley, this time to stop the his 2600 > > Enterprises websites from linking to hundreds of sites > > with the DVD encryption-busting DeCSS program." > > Correct me if I am wrong, but if linking to DeCSS web sites is considered > contempt, wouldn't the CA courthouse web site be in contempt? The > courthouse does have the DVD-CA case filings on their website which > lists the URL's of 500 DeCSS mirrors. > > Heck, I wonder if the MPAA posts their legal documents online. If so, > they would be in contempt themselves! > > Or am I totally off-base here? An injunction only applies to the individuals listed on the injunction and their associates. There are many, many, many people that simply have nothing to do with these injunctions; they are free to post whatever they want. I assume the CA courthouse isn't listed on the injunction, or could be said to be an associate of Corley. -- 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 Apr 6 15:32:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20003 for dvd-discuss-outgoing; Thu, 6 Apr 2000 15:32:29 -0400 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 PAA20000 for ; Thu, 6 Apr 2000 15:32:23 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id MAA17615 for ; Thu, 6 Apr 2000 12:32:16 -0700 (PDT) Message-ID: <38ECE5CA.D1C8EA86@cdpage.com> Date: Thu, 06 Apr 2000 13:30:18 -0600 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] second injunction 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 Edward Hernstadt wrote: > does anyone know the url of the CA courthouse website posting DeCSS addresses? http://CLARAWEB.CO.Santa-Clara.CA.US/sct/ -- 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 Thu Apr 6 15:42:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20163 for dvd-discuss-outgoing; Thu, 6 Apr 2000 15:42:31 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20160 for ; Thu, 6 Apr 2000 15:42:29 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id PAA29677 for ; Thu, 06 Apr 2000 15:44:18 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Thu, 06 Apr 2000 14:39:55 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 06 Apr 2000 15:39:22 -0400 From: "Edward Hernstadt" To: , Subject: Re: [dvd-discuss] second injunction 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 PAA20161 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks. I found the courthouse, but not the posting with all the DeCSS urls. >>> Dana Parker 04/06/00 03:30PM >>> Edward Hernstadt wrote: > does anyone know the url of the CA courthouse website posting DeCSS addresses? http://CLARAWEB.CO.Santa-Clara.CA.US/sct/ -- 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 Thu Apr 6 15:49:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20330 for dvd-discuss-outgoing; Thu, 6 Apr 2000 15:49:04 -0400 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 PAA20327 for ; Thu, 6 Apr 2000 15:48:59 -0400 Received: from cdpage.com (edsl12.dnvr.uswest.net [209.180.252.12]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id MAA18628 for ; Thu, 6 Apr 2000 12:49:02 -0700 (PDT) Message-ID: <38ECE9B7.2D84978@cdpage.com> Date: Thu, 06 Apr 2000 13:47:03 -0600 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] second injunction 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 Edward Hernstadt wrote: > Thanks. I found the courthouse, but not the posting with all the DeCSS urls. Try this: http://www.2600.com/news/2000/0406.html I don't have time to open all the PDFs myself. -- 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 Thu Apr 6 16:31:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21828 for dvd-discuss-outgoing; Thu, 6 Apr 2000 16:31:06 -0400 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 QAA21825 for ; Thu, 6 Apr 2000 16:31:05 -0400 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 QAA26251 for ; Thu, 6 Apr 2000 16:30:47 -0400 (EDT) Message-Id: <4.2.2.20000406162201.00cf2cb0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 06 Apr 2000 16:30:41 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] second injunction 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 The only documents I've seen listing URLs are the complaint, available from the EFF or Cryptome sites. and and a number of exhibits the DVDCCA plaintiffs produced: I haven't seen anything posted on the court's site. --Wendy At 03:39 PM 4/6/00 -0400, ehernstadt@fgks.com wrote: >Thanks. I found the courthouse, but not the posting with all the DeCSS >urls. > > >>> Dana Parker 04/06/00 03:30PM >>> >Edward Hernstadt wrote: > > > does anyone know the url of the CA courthouse website posting DeCSS > addresses? > >http://CLARAWEB.CO.Santa-Clara.CA.US/sct/ > > > > >-- >Dana J. Parker >http://www.cdpage.com >http://www.emediapro.net >http://www.dvdpro.net > >mailto:danapark@ix.netcom.com > > 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 Apr 6 16:36:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22401 for dvd-discuss-outgoing; Thu, 6 Apr 2000 16:36:03 -0400 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 QAA22397 for ; Thu, 6 Apr 2000 16:36:02 -0400 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 QAA00412 for ; Thu, 6 Apr 2000 16:35:42 -0400 (EDT) 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 QAA11033 for ; Thu, 6 Apr 2000 16:32:34 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000406113338.H30403@linuxpower.org> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000406113338.H30403@linuxpower.org> Date: Thu, 6 Apr 2000 16:32:29 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] An Outline -- equal protection clause 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 11:33 AM -0400 4/6/2000, greslin@linuxpower.org wrote: >On Thu, Apr 06, 2000 at 10:42:13AM -0400, Arnold G. Reinhold wrote: >> >> This burden is demonstrated by CSS zoning. People who speak other >> languages or who wish to instruct their children in the language of >> their ethnic heritage are forced to purchase additional DVD players >> to view DVD content in those languages. In some cases, e.g. Spanish, >> they may need two additional players (for Latin American and European >> zones). While English speakers will enjoy availability of a full >> range of media products, U.S. distribution of media in foreign >> languages will be limited or nonexistent because of the lack of >> players. In effect, 1201 permits a private organization to tax the >> import of non-English speech. > >Region coding isn't based on language, it's based on regional distribution. >While, admittedly, there would be more Spanish-speaking DVD's in Spain >than in the United States, I don't believe there's anything inherent in >the concept of region coding itself that bars content on cultural or >linguistic grounds. You can logically claim that without region coding, >such instruction would be easier, but saying that region coding prevents >cultural instruction isn't technically true, per se. At the most, it >makes it more challenging. > I didn't say it totally bared cultural instruction, just that it put an undue burden on it. The purpose of zoning, indeed the main purpose of CSS it to prevent media purchased outside a zone from being played inside that zone. I don't think a law banning individuals from bringing into the U.S. a book or movie that they purchased overseas would be constitutional. CSS demonstrates the 1201 has the same effect. As more and more content is distributed by electronic means, the noose that 1201 puts around the neck of intercultural communication will tighten until only content that U.S. companies choose to release domestically will be available to most people. That will affect minority cultures far more than it will the majority culture. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 16:44:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25581 for dvd-discuss-outgoing; Thu, 6 Apr 2000 16:44:30 -0400 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 QAA25578 for ; Thu, 6 Apr 2000 16:44:30 -0400 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 QAA04054 for ; Thu, 6 Apr 2000 16:44:14 -0400 (EDT) Message-Id: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 06 Apr 2000 16:43:13 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Journalist's error of the day 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 decryption program, known as DeCSS, is banned under the *anti-circumnavigation* provisions of the Digital Millennium Copyright Act, says the MPAA." (A8 of today's Wall Street Journal, in an article about the anti-linking motion in NY that otherwise says nothing new). For a better article on linking, try Salon's: "Can Hyperlinks be Outlawed?" contrasting DeCSS with the recent ruling permitting deep linking in the TicketMaster case. --Wendy Time to cancel that round-the-world cruise carrying a DVD. 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 Apr 6 16:48:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26407 for dvd-discuss-outgoing; Thu, 6 Apr 2000 16:48:35 -0400 Received: from web205.mail.yahoo.com (web205.mail.yahoo.com [128.11.68.105]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA26404 for ; Thu, 6 Apr 2000 16:48:34 -0400 Received: (qmail 3832 invoked by uid 60001); 6 Apr 2000 20:48:19 -0000 Message-ID: <20000406204819.3831.qmail@web205.mail.yahoo.com> Received: from [209.206.61.230] by web205.mail.yahoo.com; Thu, 06 Apr 2000 13:48:19 PDT Date: Thu, 6 Apr 2000 13:48:19 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] second injunction 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 could not find any "active" links on the mpaa site with the court document. so, is it a question of links being active, in order to be considered "providing" ? Is this defined somewhere? Is there some precedence here? The court document does refer to the place where the DeCSS is contained and what it is, the same as the site did and if we are talking about active links, Google has over 7000 links to sites with active links to decss. --- Tim Neu wrote: > . . . > Correct me if I am wrong, but if linking to DeCSS > web sites is considered > contempt, wouldn't the CA courthouse web site be in > contempt? The > courthouse does have the DVD-CA case filings on > their website which > lists the URL's of 500 DeCSS mirrors. > > Heck, I wonder if the MPAA posts their legal > documents online. If so, > they would be in contempt themselves! > > Or am I totally off-base here? > > =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ===== http://www.merchantsave.com/3d.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 Apr 6 16:55:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29939 for dvd-discuss-outgoing; Thu, 6 Apr 2000 16:55:08 -0400 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 QAA29936 for ; Thu, 6 Apr 2000 16:55:07 -0400 Received: from jy01 (user-2inij7k.dialup.mindspring.com [165.121.76.244]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id QAA17633 for ; Thu, 6 Apr 2000 16:54:52 -0400 (EDT) Message-Id: <200004062054.QAA17633@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 06 Apr 2000 16:45:32 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] MPAA v. 2600 Motion In-Reply-To: <4.2.2.20000406145754.00c7ae10@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 We offer the five MPAA documents of the motion to enjoin 2600 from linking to sites which offer DeCSS. These are HTML versions of the PDFs on 2600, exluding the 73 pages of exhibits: http://cryptome.org/mpaa-v-2600-nm.htm (90K) From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 17:22:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30535 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:22:28 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30532 for ; Thu, 6 Apr 2000 17:22:27 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id RAA29855 for ; Thu, 06 Apr 2000 17:24:15 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Thu, 06 Apr 2000 16:19:52 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 06 Apr 2000 17:19:43 -0400 From: "Edward Hernstadt" To: Subject: Re: [dvd-discuss] MPAA v. 2600 Motion 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 RAA30533 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu thanks. >>> John Young 04/06/00 04:45PM >>> We offer the five MPAA documents of the motion to enjoin 2600 from linking to sites which offer DeCSS. These are HTML versions of the PDFs on 2600, exluding the 73 pages of exhibits: http://cryptome.org/mpaa-v-2600-nm.htm (90K) From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 17:22:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30598 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:22:55 -0400 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 RAA30592 for ; Thu, 6 Apr 2000 17:22:53 -0400 Received: (from paul@localhost) by dial146.roadrunner.com (8.8.7/8.8.7) id PAA01873 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 15:26:27 -0600 Date: Thu, 6 Apr 2000 15:26:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] second injunction Message-ID: <20000406152625.A1843@localhost> References: <38ECE9B7.2D84978@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38ECE9B7.2D84978@cdpage.com>; from dparker@cdpage.com on Thu, Apr 06, 2000 at 01:47:03PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 01:47:03PM -0600, Dana Parker wrote: > Edward Hernstadt wrote: > > > Thanks. I found the courthouse, but not the posting with all the DeCSS urls. > > Try this: http://www.2600.com/news/2000/0406.html > > I don't have time to open all the PDFs myself. Thanks Dana. The pdf files are simply fax images. No wonder they are so huge, there isn't any real text data in the pdf, only page images. Gag. I can deal with pdf --> html in a moderately automatic sense if there is text in them, but this g3 tiff stuff is for the birds. Has anyone else found a different source for these docs yet (in a friendlier format, as in searchable)? Does anyone have the capability to do automatic character recognition so that we can get these documents into text or html without typing them by hand? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 17:24:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30716 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:24:56 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30713 for ; Thu, 6 Apr 2000 17:24:55 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id RAA29856 for ; Thu, 06 Apr 2000 17:26:46 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Thu, 06 Apr 2000 16:22:23 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 06 Apr 2000 17:22:01 -0400 From: "Edward Hernstadt" To: Subject: Re: [dvd-discuss] second injunction 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 RAA30714 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu thanks. I don't think it matters who posts a court document if an injunction can shut the court filing down, but it's a more stark example of the danger of DMCA if one court order impacts another court's website.court acts >>> Marcia Wilbur 04/06/00 04:48PM >>> I could not find any "active" links on the mpaa site with the court document. so, is it a question of links being active, in order to be considered "providing" ? Is this defined somewhere? Is there some precedence here? The court document does refer to the place where the DeCSS is contained and what it is, the same as the site did and if we are talking about active links, Google has over 7000 links to sites with active links to decss. --- Tim Neu wrote: > . . . > Correct me if I am wrong, but if linking to DeCSS > web sites is considered > contempt, wouldn't the CA courthouse web site be in > contempt? The > courthouse does have the DVD-CA case filings on > their website which > lists the URL's of 500 DeCSS mirrors. > > Heck, I wonder if the MPAA posts their legal > documents online. If so, > they would be in contempt themselves! > > Or am I totally off-base here? > > =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ===== http://www.merchantsave.com/3d.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 Apr 6 17:26:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30801 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:26:37 -0400 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 RAA30798 for ; Thu, 6 Apr 2000 17:26:34 -0400 Received: (from paul@localhost) by dial146.roadrunner.com (8.8.7/8.8.7) id PAA01940 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 15:30:09 -0600 Date: Thu, 6 Apr 2000 15:30:08 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406153008.A1900@localhost> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <200004062054.QAA17633@tisch.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200004062054.QAA17633@tisch.mail.mindspring.net>; from jya@pipeline.com on Thu, Apr 06, 2000 at 04:45:32PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks. This is what I was looking for. Paul Fenimore On Thu, Apr 06, 2000 at 04:45:32PM -0400, John Young wrote: > We offer the five MPAA documents of the motion to > enjoin 2600 from linking to sites which offer DeCSS. > These are HTML versions of the PDFs on 2600, > exluding the 73 pages of exhibits: > > http://cryptome.org/mpaa-v-2600-nm.htm (90K) > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 17:50:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA00353 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:50:20 -0400 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 RAA00350 for ; Thu, 6 Apr 2000 17:50:19 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA31493 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 16:50:01 -0500 Date: Thu, 6 Apr 2000 16:50:01 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406165001.A31413@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <200004062054.QAA17633@tisch.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <200004062054.QAA17633@tisch.mail.mindspring.net>; from jya@pipeline.com on Thu, Apr 06, 2000 at 04:45:32PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:45:32PM -0400, John Young wrote: > We offer the five MPAA documents of the motion to > enjoin 2600 from linking to sites which offer DeCSS. > These are HTML versions of the PDFs on 2600, > exluding the 73 pages of exhibits: > > http://cryptome.org/mpaa-v-2600-nm.htm (90K) Eric's favorite quotes: Hand-waving award: "At least in this context, and under substantially similar circumstances, posting and linking are substantially similar activities..." Circular logic award: "A 'link' or 'hyperlink' is a link from one location on the Internet to a second location on the Internet." HTML for dummies award: "A hyperlink... generally refers to software instructions which, when executed, cause a signal to be sent to another location where data or material can be retrieved..." Sticks and stones award: "[2600 is] requesting that those persons who have joined in such illegal conduct furnish the 2600 defendants with the Internet location(s) where the DeCSS posting appears and can be downloaded..." Good timing award: "The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with minimal, if any, expressive content..." Hypocrite award: "...the regulation of the 2600 defendants' linking scheme will ultimately serve to foster other constitutional interests, namely, the plaintiffs' First Amendment right to speak (through their copyrighted motion pictures)..." Sneaky definition award: "DeCSS" means any computer program, file or other 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 unauthorized access or copying of the contents or any portion thereof." Oh, and by the way, all they're asking for is an injuntion preventing "posting on or linking to any Internet web site, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in DeCSS". Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 17:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA00403 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:50:36 -0400 Received: from dial247.roadrunner.com (dial247.cybermesa.com [209.12.75.247]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA00388 for ; Thu, 6 Apr 2000 17:50:33 -0400 Received: (from paul@localhost) by dial247.roadrunner.com (8.8.7/8.8.7) id PAA02108 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 15:53:59 -0600 Date: Thu, 6 Apr 2000 15:53:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406155357.A2001@localhost> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000406145754.00c7ae10@law.harvard.edu>; from wendy@seltzer.com on Thu, Apr 06, 2000 at 04:43:13PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:43:13PM -0400, Wendy Seltzer wrote: > "The decryption program, known as DeCSS, is banned under the > *anti-circumnavigation* provisions of the Digital Millennium Copyright Act, > says the MPAA." > (A8 of today's Wall Street Journal, in an article about the anti-linking > motion in NY that otherwise says nothing new). > > For a better article on linking, try Salon's: "Can Hyperlinks be Outlawed?" > contrasting DeCSS with the recent ruling permitting deep linking in the > TicketMaster case. > The contention in "Supplemental Declaration of Robert W. Schumann" seems to be, roughly speaking, that "; Thu, 6 Apr 2000 17:51:26 -0400 Received: (qmail 6751 invoked by uid 502); 6 Apr 2000 20:53:21 -0000 Date: Thu, 6 Apr 2000 16:53:20 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406165320.I30403@linuxpower.org> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <4.2.2.20000406145754.00c7ae10@law.harvard.edu>; from Wendy Seltzer on Thu, Apr 06, 2000 at 04:43:13PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:43:13PM -0400, Wendy Seltzer wrote: > "The decryption program, known as DeCSS, is banned under the > *anti-circumnavigation* provisions of the Digital Millennium Copyright Act, > says the MPAA." Magellan must be spinning in his grave. :) -- 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 Apr 6 17:57:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA00791 for dvd-discuss-outgoing; Thu, 6 Apr 2000 17:57:19 -0400 Received: from dial247.roadrunner.com (dial247.cybermesa.com [209.12.75.247]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA00788 for ; Thu, 6 Apr 2000 17:57:15 -0400 Received: (from paul@localhost) by dial247.roadrunner.com (8.8.7/8.8.7) id QAA02149 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 16:00:49 -0600 Date: Thu, 6 Apr 2000 16:00:48 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The MPAA's argument? Message-ID: <20000406160048.A2127@localhost> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <20000406155357.A2001@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406155357.A2001@localhost>; from fenimore@roadrunner.com on Thu, Apr 06, 2000 at 03:53:58PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Forgot to update the subject line. Paul Fenimore On Thu, Apr 06, 2000 at 03:53:58PM -0600, Paul Fenimore wrote: > On Thu, Apr 06, 2000 at 04:43:13PM -0400, Wendy Seltzer wrote: [ ... ] > > For a better article on linking, try Salon's: "Can Hyperlinks be Outlawed?" > > contrasting DeCSS with the recent ruling permitting deep linking in the > > TicketMaster case. > > > > The contention in "Supplemental Declaration of Robert W. Schumann" > seems to be, roughly speaking, that " so that writing www.get.decsss.right.now without mark-up tags might > be ok in the MPAA's view, putting that same string in as a reference > is functional. > > 2. A hyperlink, in the context of the Internet, generally refers to > software instructions which, when executed, cause a signal to be sent > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > to another location where data or material can be retrieved for > viewing, copying or further transmission. Historically, many of the > > I may be missing a few fine points after this very fast reading, but > I think this may be the core argument. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 18:17:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01244 for dvd-discuss-outgoing; Thu, 6 Apr 2000 18:17:13 -0400 Received: from dial82.roadrunner.com (dial82.cybermesa.com [209.12.75.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01241 for ; Thu, 6 Apr 2000 18:17:10 -0400 Received: (from paul@localhost) by dial82.roadrunner.com (8.8.7/8.8.7) id QAA02315 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 16:20:44 -0600 Date: Thu, 6 Apr 2000 16:20:43 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406162042.A2199@localhost> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <200004062054.QAA17633@tisch.mail.mindspring.net> <20000406165001.A31413@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406165001.A31413@thud.reric.net>; from eds@reric.net on Thu, Apr 06, 2000 at 04:50:01PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:50:01PM -0500, Eric Seppanen wrote: [ ... ] > HTML for dummies award: > "A hyperlink... generally refers to software instructions which, when > executed, cause a signal to be sent to another location where data or > material can be retrieved..." I'm not an html expert, but I think this can be demolished. Yes? The person *using* the browser causes the link to be followed. Don't cgi scripts exist for this very reason? HTML alone cannot pass the "checkbook balancer" test. > Sticks and stones award: > "[2600 is] requesting that those persons who have joined in such illegal > conduct furnish the 2600 defendants with the Internet location(s) where > the DeCSS posting appears and can be downloaded..." > > Good timing award: > "The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with > minimal, if any, expressive content..." This one is extraordinarily dangerous. What are law citations? Are they expressive or functional? What I'm trying to get at is, they claim to be going after functionality, but " Oh, and by the way, all they're asking for is an injunction preventing > "posting on or linking to any Internet web site, or in any other way > manufacturing, importing, offering to the public, providing, or otherwise > trafficking in DeCSS". Haven't these people heard of jurisdiction? Oh, I forgot, the U.S.A. owns the Internet, even the bits outside the U.S. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 18:44:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01762 for dvd-discuss-outgoing; Thu, 6 Apr 2000 18:44:08 -0400 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 SAA01759 for ; Thu, 6 Apr 2000 18:44:07 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id B56527705; Thu, 6 Apr 2000 17:43:54 -0500 (CDT) Date: Thu, 6 Apr 2000 17:43:54 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the MPAA's argument Message-ID: <20000406174354.A13311@arh1176.urh.uiuc.edu> References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <20000406155357.A2001@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <20000406155357.A2001@localhost>; from fenimore@roadrunner.com on Thu, Apr 06, 2000 at 03:53:58PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 03:53:58PM -0600, Paul Fenimore wrote: > > The contention in "Supplemental Declaration of Robert W. Schumann" > seems to be, roughly speaking, that " so that writing www.get.decsss.right.now without mark-up tags might > be ok in the MPAA's view, putting that same string in as a reference > is functional. Cannot hyperlinks be both expressive and functional at the same time? They implement a reference to a website, but at the same time they have text themselves. For instance, as many of you have probably noticed, I am writing this paragraph as a hyperlink. The functional content is "foo" but all of this text expressive. In this case, as my functional content is symbolic, it should be protected, just as burning a draft card is. All of this link should be considered "speech" and protected by the first ammendment. Now, I don't know the situation at 2600, so I can't say if their hyperlinks have any expressive content in them at all. But my example here does show how it could be argued. > 2. A hyperlink, in the context of the Internet, generally refers to > software instructions which, when executed, cause a signal to be sent > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > to another location where data or material can be retrieved for > viewing, copying or further transmission. Historically, many of the > > I may be missing a few fine points after this very fast reading, but > I think this may be the core argument. I think you have it prett well (or at least as well as I do). I don't think their arguement is technically or logically sound, and I hope the EFF lawyers can convince the judge of that. -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: When Marriage is Outlawed, Only Outlaws will have Inlaws. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 18:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01888 for dvd-discuss-outgoing; Thu, 6 Apr 2000 18:46:47 -0400 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 SAA01885 for ; Thu, 6 Apr 2000 18:46:46 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id RAA31651 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 17:46:32 -0500 Date: Thu, 6 Apr 2000 17:46:32 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406174632.A31622@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <200004062054.QAA17633@tisch.mail.mindspring.net> <20000406165001.A31413@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000406165001.A31413@thud.reric.net>; from eds@reric.net on Thu, Apr 06, 2000 at 04:50:01PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:50:01PM -0500, Eric Seppanen wrote: (Zork tells me that talking to myself is a sign of impending mental collapse...) > > Oh, and by the way, all they're asking for is an injuntion preventing > "posting on or linking to any Internet web site, or in any other way > manufacturing, importing, offering to the public, providing, or otherwise > trafficking in DeCSS". I had to go back and read that one again. I don't freaking believe it! They're asking for the court to enjoin 2600 from linking to *anybody*!!! Let me reformat their paragraph to illustrate: posting on or linking to any Internet web site, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in DeCSS. What the hell is this? 2600 would be forced to *shut* *down*, or spend the next month mangling up web pages to remove every they ever wrote! Eric who's pissed now From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 19:50:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04469 for dvd-discuss-outgoing; Thu, 6 Apr 2000 19:50:46 -0400 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 TAA04466 for ; Thu, 6 Apr 2000 19:50:44 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 6 Apr 2000 16:51:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A69@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Thu, 6 Apr 2000 16:51:00 -0700 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 Ridiculous. The execution is not in the document, it is in the browser. You can load an HTML page up in notepad, and the difference we are talking about is seeing: to see more, visit http://www.salon.com/tech/log/2000/04/06/decss/print.html vs. to see more, visit http://www. salon.com/tech/log/2000/04/06/decss/print.html You see ... it's all just text. The "magic" is in what happens when IE (or Netscape, or Opera, or ...) loads this text and -interprets- the tags. It highlights the text between the and markers and if the mouse is clicked in that area, loads the page indicated by the URL in the href. So if the crux of their argument is "active links" vs. mere URLs, it is the -tool- that makes the link "active" -- basically it's just data. Let's explore the concept of "active" a bit more ... if you have some of Microsoft's fine tools, then the tags are not needed to make a link active. Those of you reading this message using Outlook will probably see the URL in the first of the above alternatives as blue with underlining. If you click on it, you will launch IE and load that page -- even though it does -not- have the "active link" marker tags. Outlook makes EVEN UNTAGGED URLs IN PLAIN TEXT MESSAGES "active", as do recent versions of MS Word (I think). So EVERY PLAIN URL in any text document can be considered to be an "active" link if viewed with certain applications! The MPAA's argument is gibberish, and should be shredded by whoever is arguing against them on it's technical merits. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > Sent: Thursday, April 06, 2000 2:54 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Journalist's error of the day > > > On Thu, Apr 06, 2000 at 04:43:13PM -0400, Wendy Seltzer wrote: > > "The decryption program, known as DeCSS, is banned under the > > *anti-circumnavigation* provisions of the Digital > Millennium Copyright Act, > > says the MPAA." > > (A8 of today's Wall Street Journal, in an article about the > anti-linking > > motion in NY that otherwise says nothing new). > > > > For a better article on linking, try Salon's: "Can > Hyperlinks be Outlawed?" > > contrasting DeCSS with the recent ruling permitting deep > linking in the > > TicketMaster case. > > > > The contention in "Supplemental Declaration of Robert W. Schumann" > seems to be, roughly speaking, that " so that writing www.get.decsss.right.now without mark-up tags might > be ok in the MPAA's view, putting that same string in as a reference > is functional. > > 2. A hyperlink, in the context of the Internet, generally refers to > software instructions which, when executed, cause a signal > to be sent > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > to another location where data or material can be retrieved for > viewing, copying or further transmission. Historically, many of the > > I may be missing a few fine points after this very fast reading, but > I think this may be the core argument. > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 19:55:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04628 for dvd-discuss-outgoing; Thu, 6 Apr 2000 19:55:53 -0400 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 TAA04625 for ; Thu, 6 Apr 2000 19:55:52 -0400 Received: (qmail 21963 invoked by uid 60001); 6 Apr 2000 23:55:39 -0000 Message-ID: <20000406235539.21962.qmail@web501.mail.yahoo.com> Received: from [24.28.154.65] by web501.mail.yahoo.com; Thu, 06 Apr 2000 16:55:39 PDT Date: Thu, 6 Apr 2000 16:55:39 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 Motion 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: > HTML for dummies award: > "A hyperlink... generally refers to software instructions which, when > executed, cause a signal to be sent to another location where data or > material can be retrieved..." We should find a way to accept the "software instructions which, when executed" part. It will be much easier to show that DVD's contains programs given that they are going to stipulate that any old markup language contains executable software instructions. > Good timing award: > "The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with > minimal, if any, expressive content..." Gee, I thought source code was expression, protected by the First Amendment. I guess our friends don't track current events in the 6th Circuit as closely as they should. > Sneaky definition award: > "DeCSS" means any computer program, file or other 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 unauthorized access or copying of the contents or any portion > thereof." This would include any compilers, interpreters, and shells would it not? __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 19:57:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04735 for dvd-discuss-outgoing; Thu, 6 Apr 2000 19:57:45 -0400 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 TAA04732 for ; Thu, 6 Apr 2000 19:57:45 -0400 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id SAA13091 for ; Thu, 6 Apr 2000 18:57:35 -0500 Date: Thu, 6 Apr 2000 18:57:35 -0500 (CDT) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-Reply-To: <20000406155357.A2001@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, 6 Apr 2000, Paul Fenimore wrote: > The contention in "Supplemental Declaration of Robert W. Schumann" > seems to be, roughly speaking, that " so that writing www.get.decsss.right.now without mark-up tags might > be ok in the MPAA's view, putting that same string in as a reference > is functional. > > 2. A hyperlink, in the context of the Internet, generally refers to > software instructions which, when executed, cause a signal to be sent > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > to another location where data or material can be retrieved for > viewing, copying or further transmission. Historically, many of the > > I may be missing a few fine points after this very fast reading, but > I think this may be the core argument. > > Paul Fenimore > Junger v United States - "The fact that a medium of expression has a functional capacity should not preclude constitutional protection. " doh! sam th sytobinh@uchicago.edu http://bur-jud-118-039.rh.uchicago.edu From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:01:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04850 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:01:25 -0400 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 UAA04847 for ; Thu, 6 Apr 2000 20:01:24 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 6 Apr 2000 17:01:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A6A@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Thu, 6 Apr 2000 17:01:35 -0700 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 An Wired news article on the injunction against links to cphack may be pertinant as well: http://www.wired.com/news/business/0,1367,35464,00.html Significant quote: "The legal issue here is whether a Boston court has jurisdiction over the entire Internet, and our answer to that is a resounding 'no,'" said ACLU senior staff attorney Chris Hansen. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Wendy Seltzer [mailto:wendy@seltzer.com] > > For a better article on linking, try Salon's: "Can Hyperlinks > be Outlawed?" > contrasting DeCSS with the recent ruling permitting deep > linking in the > TicketMaster case. > > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:09:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05025 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:09:22 -0400 Received: from dial236.roadrunner.com (dial236.cybermesa.com [209.12.75.236]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05022 for ; Thu, 6 Apr 2000 20:09:20 -0400 Received: (from paul@localhost) by dial236.roadrunner.com (8.8.7/8.8.7) id SAA03401 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 18:12:57 -0600 Date: Thu, 6 Apr 2000 18:12:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406181256.A3391@localhost> References: <20000406235539.21962.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406235539.21962.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Apr 06, 2000 at 04:55:39PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 04:55:39PM -0700, Bryan Taylor wrote: > --- Eric Seppanen wrote: > > > HTML for dummies award: > > "A hyperlink... generally refers to software instructions which, when > > executed, cause a signal to be sent to another location where data or > > material can be retrieved..." > > We should find a way to accept the "software instructions which, when executed" > part. It will be much easier to show that DVD's contains programs given that > they are going to stipulate that any old markup language contains executable > software instructions. Perhaps "cause" in "...cause a signal to be sent..." is the crux? Does it help to say the HTML tag "permits," not "causes"? Even this is not really right, because there are other ways to do it that don't involve tags at all (like cut from the displayed text and past the address). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:11:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05367 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:11:55 -0400 Received: from dial236.roadrunner.com (dial236.cybermesa.com [209.12.75.236]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05363 for ; Thu, 6 Apr 2000 20:11:53 -0400 Received: (from paul@localhost) by dial236.roadrunner.com (8.8.7/8.8.7) id SAA03426 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 18:15:29 -0600 Date: Thu, 6 Apr 2000 18:15:27 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406181525.B3391@localhost> References: <20000406155357.A2001@localhost> 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, Apr 06, 2000 at 06:57:35PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 06:57:35PM -0500, sam th wrote: > On Thu, 6 Apr 2000, Paul Fenimore wrote: > > The contention in "Supplemental Declaration of Robert W. Schumann" > > seems to be, roughly speaking, that " > so that writing www.get.decsss.right.now without mark-up tags might > > be ok in the MPAA's view, putting that same string in as a reference > > is functional. > > > > 2. A hyperlink, in the context of the Internet, generally refers to > > software instructions which, when executed, cause a signal to be sent > > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > to another location where data or material can be retrieved for > > viewing, copying or further transmission. Historically, many of the > > > > I may be missing a few fine points after this very fast reading, but > > I think this may be the core argument. > > > > Paul Fenimore > > > > Junger v United States - > > "The fact that a medium of expression has a functional capacity should not > preclude constitutional protection. " I agree, but this is why they are trying to tie the html link to the function of DeCSS: then they can make an intellectual property issue out of the link. If they succeed, there are balancing issues between copyright and the First. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:13:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05470 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:13:21 -0400 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 UAA05467 for ; Thu, 6 Apr 2000 20:13:20 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA21190 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 17:08:35 -0700 Date: Thu, 6 Apr 2000 17:08:34 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406170834.X23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000406155357.A2001@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from sam@bur-jud-118-039.rh.uchicago.edu on Thu, Apr 06, 2000 at 06:57:35PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > On Thu, 6 Apr 2000, Paul Fenimore wrote: > > The contention in "Supplemental Declaration of Robert W. Schumann" > > seems to be, roughly speaking, that " > so that writing www.get.decsss.right.now without mark-up tags might > > be ok in the MPAA's view, putting that same string in as a reference > > is functional. > > > > 2. A hyperlink, in the context of the Internet, generally refers to > > software instructions which, when executed, cause a signal to be sent > > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > to another location where data or material can be retrieved for > > viewing, copying or further transmission. Historically, many of the > > > > I may be missing a few fine points after this very fast reading, but > > I think this may be the core argument. > > > > Paul Fenimore > > > > Junger v United States - > > "The fact that a medium of expression has a functional capacity should not > preclude constitutional protection. " > > doh! Wrong judicial circuit. :-) ... but it's nice anyway. I haven't heard people here say quite enough about the distinction between markup languages and programming languages or scripting languages. We shouldn't even need to reach (on this point) the claim that computer programs like DeCSS are protected speech. An tag in HTML is just like a tag or an tag or an

tag -- it conveys descriptive information about the text being marked up. The fact that anchor tags can have a variety of attributes, including hypertext reference attributes, does not mean that HTML is a programming language or that HTML tags should be considered instructions to computers. The significance of the HREF attribute is that it represents a claim that (more or less) "additional related information for this text is available in a document which may be retrieved with this URI". It's still just markup -- assertions about the sigificance, properties, logical structure, useful display, etc., of plain text. Maybe the 6th Circuit is a good place to be right now if you want to publish controversial software, or links to it. If someone who's read everything in _Bernstein_ lately would care to compare _Bernstein_ and _Junger_ for us, I'd be pretty interested. -- 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 Apr 6 20:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05570 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:20:53 -0400 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 UAA05567 for ; Thu, 6 Apr 2000 20:20:51 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA21212 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 17:16:06 -0700 Date: Thu, 6 Apr 2000 17:16:00 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406171600.Y23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000406235539.21962.qmail@web501.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000406235539.21962.qmail@web501.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Apr 06, 2000 at 04:55:39PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Eric Seppanen wrote: > > > HTML for dummies award: > > "A hyperlink... generally refers to software instructions which, when > > executed, cause a signal to be sent to another location where data or > > material can be retrieved..." > > We should find a way to accept the "software instructions which, when executed" > part. It will be much easier to show that DVD's contains programs given that > they are going to stipulate that any old markup language contains executable > software instructions. I'd go with both, really, and reach three points (all of which I believe): (1) HTML markup is not a program. (2) If HTML markup is a program (as the MPAA is happy to assert), then the contents of a DVD are certainly a program also, because they much more directly control the operation of a computer than does HTML markup (hence interoperability arguments are reasonable). (3) Whether or not HTML or DVDs are programs, something which is a program can still be protected speech. > > Good timing award: > > "The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with > > minimal, if any, expressive content..." > > Gee, I thought source code was expression, protected by the First Amendment. I > guess our friends don't track current events in the 6th Circuit as closely as > they should. I won't blame them, considering they are not in the 6th Circuit and don't practice law there. Maybe it's a "rising trend", but it's potentially a pretty long time before _Junger_ or _Bernstein_ can be cited as authoritative precedent in any court in New York. -- 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 Apr 6 20:27:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05716 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:27:57 -0400 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 UAA05713 for ; Thu, 6 Apr 2000 20:27:56 -0400 Received: (qmail 10247 invoked by uid 502); 6 Apr 2000 23:29:52 -0000 Date: Thu, 6 Apr 2000 19:29:52 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406192952.A9418@linuxpower.org> References: <20000406155357.A2001@localhost> <20000406170834.X23385@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000406170834.X23385@cty-alum.org>; from Seth David Schoen on Thu, Apr 06, 2000 at 05:08:34PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 05:08:34PM -0700, Seth David Schoen wrote: > > I haven't heard people here say quite enough about the distinction between > markup languages and programming languages or scripting languages. We > shouldn't even need to reach (on this point) the claim that computer > programs like DeCSS are protected speech. Well, one such distinction is Turing Completeness, which is.. Deeply sorry. :) Was suddenly caught up in this whole deja vu thing. 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 Apr 6 20:38:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06095 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:38:34 -0400 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 UAA06092 for ; Thu, 6 Apr 2000 20:38:32 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id RAA21275 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 17:33:47 -0700 Date: Thu, 6 Apr 2000 17:33:46 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406173346.Z23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000406155357.A2001@localhost> <20000406170834.X23385@cty-alum.org> <20000406192952.A9418@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000406192952.A9418@linuxpower.org>; from greslin@linuxpower.org on Thu, Apr 06, 2000 at 07:29:52PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu greslin@linuxpower.org writes: > On Thu, Apr 06, 2000 at 05:08:34PM -0700, Seth David Schoen wrote: > > > > I haven't heard people here say quite enough about the distinction between > > markup languages and programming languages or scripting languages. We > > shouldn't even need to reach (on this point) the claim that computer > > programs like DeCSS are protected speech. > > Well, one such distinction is Turing Completeness, which is.. > > Deeply sorry. :) Was suddenly caught up in this whole deja vu thing. Heh. :-) This time, the plaintiffs brought it up, though -- at least, they claimed that something gives instructions to a computer. -- 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 Apr 6 20:39:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06159 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:39:43 -0400 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 UAA06148 for ; Thu, 6 Apr 2000 20:39:41 -0400 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id SAA03662 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 18:43:18 -0600 Date: Thu, 6 Apr 2000 18:43:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406184316.A3625@localhost> References: <20000406155357.A2001@localhost> <20000406170834.X23385@cty-alum.org> <20000406192952.A9418@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406192952.A9418@linuxpower.org>; from greslin@linuxpower.org on Thu, Apr 06, 2000 at 07:29:52PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 07:29:52PM -0400, greslin@linuxpower.org wrote: > On Thu, Apr 06, 2000 at 05:08:34PM -0700, Seth David Schoen wrote: > > > > I haven't heard people here say quite enough about the distinction between > > markup languages and programming languages or scripting languages. We > > shouldn't even need to reach (on this point) the claim that computer > > programs like DeCSS are protected speech. > > Well, one such distinction is Turing Completeness, which is.. > > Deeply sorry. :) Was suddenly caught up in this whole deja vu thing. Very funny. I have a big smile on my face right now. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:43:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06326 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:43:48 -0400 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 UAA06322 for ; Thu, 6 Apr 2000 20:43:45 -0400 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id SAA03671 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 18:47:21 -0600 Date: Thu, 6 Apr 2000 18:47:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000406184720.B3625@localhost> References: <20000406235539.21962.qmail@web501.mail.yahoo.com> <20000406171600.Y23385@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000406171600.Y23385@cty-alum.org>; from schoen@loyalty.org on Thu, Apr 06, 2000 at 05:16:00PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 05:16:00PM -0700, Seth David Schoen wrote: [ ... ] > (1) HTML markup is not a program. > (2) If HTML markup is a program (as the MPAA is happy to assert), then the > contents of a DVD are certainly a program also, because they much more > directly control the operation of a computer than does HTML markup (hence > interoperability arguments are reasonable). 17 U.S.C. 101: 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. > (3) Whether or not HTML or DVDs are programs, something which is a program > can still be protected speech. Yes. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 20:53:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06877 for dvd-discuss-outgoing; Thu, 6 Apr 2000 20:53:26 -0400 Received: from hotmail.com (f239.law8.hotmail.com [216.33.241.239]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA06874 for ; Thu, 6 Apr 2000 20:53:25 -0400 Received: (qmail 38961 invoked by uid 0); 7 Apr 2000 00:52:42 -0000 Message-ID: <20000407005242.38960.qmail@hotmail.com> Received: from 208.41.124.53 by www.hotmail.com with HTTP; Thu, 06 Apr 2000 17:52:42 PDT X-Originating-IP: [208.41.124.53] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 07 Apr 2000 00:52:42 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 So then you should be able to put the url of the address on your page. You just can't have the anchor tags in the HTML. Then, this becomes speech and not a hyperlink. So, what's next, ban all hyperlinks? Because every search engine in the world is going to have some sort of link to DeCSS. ----Original Message Follows---- From: Bryan Taylor Reply-To: dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Date: Thu, 6 Apr 2000 16:55:39 -0700 (PDT) --- Eric Seppanen wrote: > HTML for dummies award: > "A hyperlink... generally refers to software instructions which, when > executed, cause a signal to be sent to another location where data or > material can be retrieved..." We should find a way to accept the "software instructions which, when executed" part. It will be much easier to show that DVD's contains programs given that they are going to stipulate that any old markup language contains executable software instructions. > Good timing award: > "The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with > minimal, if any, expressive content..." Gee, I thought source code was expression, protected by the First Amendment. I guess our friends don't track current events in the 6th Circuit as closely as they should. > Sneaky definition award: > "DeCSS" means any computer program, file or other 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 unauthorized access or copying of the contents or any portion > thereof." This would include any compilers, interpreters, and shells would it not? __________________________________________________ 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 Apr 6 21:03:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07160 for dvd-discuss-outgoing; Thu, 6 Apr 2000 21:03:40 -0400 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 VAA07156 for ; Thu, 6 Apr 2000 21:03:39 -0400 Received: (qmail 11026 invoked by uid 502); 7 Apr 2000 00:05:22 -0000 Date: Thu, 6 Apr 2000 20:05:22 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000406200522.B9418@linuxpower.org> References: <20000406155357.A2001@localhost> <20000406170834.X23385@cty-alum.org> <20000406192952.A9418@linuxpower.org> <20000406173346.Z23385@cty-alum.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000406173346.Z23385@cty-alum.org>; from Seth David Schoen on Thu, Apr 06, 2000 at 05:33:46PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 05:33:46PM -0700, Seth David Schoen wrote: > greslin@linuxpower.org writes: > > > On Thu, Apr 06, 2000 at 05:08:34PM -0700, Seth David Schoen wrote: > > > > > > I haven't heard people here say quite enough about the distinction between > > > markup languages and programming languages or scripting languages. We > > > shouldn't even need to reach (on this point) the claim that computer > > > programs like DeCSS are protected speech. > > > > Well, one such distinction is Turing Completeness, which is.. > > > > Deeply sorry. :) Was suddenly caught up in this whole deja vu thing. > > Heh. :-) > > This time, the plaintiffs brought it up, though -- at least, they claimed > that something gives instructions to a computer. Well, considering how vague the legal definitions of "program" are, they're right from a legal perspective. Based on the 17 USC 101 definition, a delimited ASCII text file could be considered a program. I'm still debating whether the vagueness of the language is a good thing for us or not. My first inclination was/is to define it down as specifically as possible - that's the geek in me. But recent conversations with folks in the attorney set have made me wonder if we can't use that vagueness to our own advantage. I don't imagine that too many judges enjoy making rulings based on hokey definitions; the vagueness of the language could be enough in itself to convince a judge that the law itself is basically stupid in light of the technical realities. P.S. to both FAQ teams - I know I've been quiet the last few days; the batteries have been kinda low and needed recharging. I'll try and be more active here come Monday. :) -- 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 Apr 6 21:34:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA08160 for dvd-discuss-outgoing; Thu, 6 Apr 2000 21:34:38 -0400 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 VAA08157 for ; Thu, 6 Apr 2000 21:34:37 -0400 Received: from [38.32.9.24] (helo=ip24.bedford.ma.pub-ip.psi.net) by relay20.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12dNfB-0006zP-00; Thu, 6 Apr 2000 21:34:22 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Date: Thu, 06 Apr 2000 21:29:05 -0400 Message-ID: References: <4.2.2.20000406145754.00c7ae10@law.harvard.edu> <200004062054.QAA17633@tisch.mail.mindspring.net> <20000406165001.A31413@thud.reric.net> <20000406162042.A2199@localhost> In-Reply-To: <20000406162042.A2199@localhost> X-Mailer: Forte Agent 1.8/32.548 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 VAA08158 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 6 Apr 2000 16:20:43 -0600, Paul Fenimore wrote: >On Thu, Apr 06, 2000 at 04:50:01PM -0500, Eric Seppanen wrote: >> HTML for dummies award: >> "A hyperlink... generally refers to software instructions which, when >> executed, cause a signal to be sent to another location where data or >> material can be retrieved..." > >I'm not an html expert, but I think this can be demolished. Yes? The >person *using* the browser causes the link to be followed. >Don't cgi scripts exist for this very reason? HTML alone cannot pass >the "checkbook balancer" test. They better get on the Microsoft bandwagon and go after anyone distributing browsers. The browser executes the request action. (Better add Time Warner/AOL to the suit--Netscape 6 is poised to execute trillions of HTTP requests, probably spreading DeCSS all over the planet.) >From the HTTP 1.1 rfc: http://www.ietf.org/rfc/rfc2616.txt ------------------------------------ 1.4 Overall Operation The HTTP protocol is a request/response protocol. A client sends a request to the server in the form of a request method, URI, and protocol version, followed by a MIME-like message containing request modifiers, client information, and possible body content over a connection with a server. The server responds with a status line, including the message's protocol version and a success or error code, followed by a MIME-like message containing server information, entity metainformation, and possible entity-body content. The relationship between HTTP and MIME is described in appendix 19.4. Most HTTP communication is initiated by a user agent and consists of a request to be applied to a resource on some origin server. In the simplest case, this may be accomplished via a single connection (v) between the user agent (UA) and the origin server (O). request chain ------------------------> UA -------------------v------------------- O <----------------------- response chain ------------------------------------ Deconstructing the actual request/response process might be illuminating. While the public has become comfortable with the Web and treats it passively like another broadcast, their active click is key here. Web pages are less posted than shared. A Web site has opened itself to (rather than pushed itself on) the world. In this case Robert Schumann caused DeCSS to be distributed. The 2600 server merely responded to his request for documents that were on it's server. When Schuman clicked on an external link to DeCSS, his business with 2600.org was over and their server logs will reflect this. The onus is on the clicker to control his urges, not the clickee to censor himself in advance. (What other conditions/corporate tantrums should we try to anticipate?) >> Sticks and stones award: >> "[2600 is] requesting that those persons who have joined in such illegal >> conduct furnish the 2600 defendants with the Internet location(s) where >> the DeCSS posting appears and can be downloaded..." Or perhaps 2600 has their own litmus test for who they want to link to. Even Big Brother didn't _make_ his subjects use goodspeak. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 21:58:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09438 for dvd-discuss-outgoing; Thu, 6 Apr 2000 21:58:19 -0400 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 VAA09435 for ; Thu, 6 Apr 2000 21:58:19 -0400 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 VAA20792 for ; Thu, 6 Apr 2000 21:58:05 -0400 (EDT) Message-Id: <4.2.2.20000406172403.00cf2550@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 06 Apr 2000 21:58:02 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Fun with the DVDCCA FAQ 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 Even if the Annotator fails for works in progress, it's not bad for poking holes in the other side's efforts: --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 23:24:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12026 for dvd-discuss-outgoing; Thu, 6 Apr 2000 23:24:16 -0400 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 XAA12010 for ; Thu, 6 Apr 2000 23:24:15 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA23028; Thu, 6 Apr 2000 23:24:00 -0400 Date: Thu, 6 Apr 2000 23:24:00 -0400 From: Jim Bauer Message-Id: <200004070324.XAA23028@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Newsgroups: local.dvd-discuss In-Reply-To: <20000406181256.A3391@localhost> References: <20000406235539.21962.qmail@web501.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From: Paul Fenimore >On Thu, Apr 06, 2000 at 04:55:39PM -0700, Bryan Taylor wrote: >> --- Eric Seppanen wrote: >> >> > HTML for dummies award: >> > "A hyperlink... generally refers to software instructions which, when >> > executed, cause a signal to be sent to another location where data or >> > material can be retrieved..." >> >> We should find a way to accept the "software instructions which, when executed" >> part. It will be much easier to show that DVD's contains programs given that >> they are going to stipulate that any old markup language contains executable >> software instructions. > >Perhaps "cause" in "...cause a signal to be sent..." is the crux? Does >it help to say the HTML tag "permits," not "causes"? Even this is >not really right, because there are other ways to do it that don't >involve tags at all (like cut from the displayed text and past the >address). The work "suggests" would be better then "cause" or "permits". -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 6 23:46:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12766 for dvd-discuss-outgoing; Thu, 6 Apr 2000 23:46:39 -0400 Received: from web204.mail.yahoo.com (web204.mail.yahoo.com [128.11.68.104]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA12763 for ; Thu, 6 Apr 2000 23:46:38 -0400 Received: (qmail 21380 invoked by uid 60001); 7 Apr 2000 03:46:25 -0000 Message-ID: <20000407034625.21379.qmail@web204.mail.yahoo.com> Received: from [206.15.140.240] by web204.mail.yahoo.com; Thu, 06 Apr 2000 20:46:25 PDT Date: Thu, 6 Apr 2000 20:46:25 -0700 (PDT) From: Marcia Wilbur Subject: [dvd-discuss] time digital actively links to illegal software 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 http://www.time.com/time/digital/daily/0,2822,42129,00.html active link to mirror sites of the cphack WEDNESDAY, MARCH 29, 2000 In this story about Matthew Skala and Eddy Jansson on cphack. Cphack that was used to circumvent CyberPatrol. A "federal judge in Boston issued a ruling prohibiting anyone from acting "in concert" to distribute the program." um, Time Digital, (of Time Warner) has an active link to mirror sites that link to cphack! also CNN Interactive (Time Warner)has a link to 2 sites which contain links to DeCSS http://www.cnn.com/2000/TECH/computing/01/18/dvd.suit.idg/index.html -marcia ===== http://www.merchantsave.com/3d.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 Apr 7 00:12:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13470 for dvd-discuss-outgoing; Fri, 7 Apr 2000 00:12:23 -0400 Received: from dial88.roadrunner.com (dial88.cybermesa.com [209.12.75.88]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13467 for ; Fri, 7 Apr 2000 00:12:17 -0400 Received: (from paul@localhost) by dial88.roadrunner.com (8.8.7/8.8.7) id WAA05059 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Apr 2000 22:15:48 -0600 Date: Thu, 6 Apr 2000 22:15:48 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Fun with the DVDCCA FAQ Message-ID: <20000406221547.A5023@localhost> References: <4.2.2.20000406172403.00cf2550@law.harvard.edu> <4.2.2.20000406172403.00cf2550@law.harvard.edu> <20000406211313.A4753@localhost> <4.2.2.20000406232429.00cc8a60@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000406232429.00cc8a60@law.harvard.edu>; from wendy@seltzer.com on Thu, Apr 06, 2000 at 11:32:26PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 06, 2000 at 11:32:26PM -0400, Wendy Seltzer wrote: > At 09:13 PM 4/6/00 -0600, Paul Fenimore wrote: [ ... ] > >Is the annotator another fair use of web-based content that might be > >prevented by access control? > > I certainly like to think it's fair use. It's already prevented by PDFs, > and I suppose it would be blocked by plenty of other access controls. I > suppose it's an example of the kind of commentary/criticism that won't be > permitted if MPAA et al. have their way with the DMCA. Interesting(?) variations on this: 1. Would pdftohtml be circumvention? PDF files can be "encrypted." The annotator get around the issue of PDF format by doing conversion on the fly. If the file were encrypted, the MPAA would have us believe that this is circumvention. [ pdftohtml is near version number 0.21, so the authors don't seem to think it is a finished too yet. John Young mentioned that ghostscript can do conversion to plain text. ] 2. This type of commentary/criticism doesn't _require_ that the annotator site maintain persistent copies of the work in question. That makes is pretty different from criticism or commentary on the printed page. One can argue that there is less of a question of infringement, but access control might kill it anyway. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 10:16:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25396 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:16:51 -0400 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 KAA25393 for ; Fri, 7 Apr 2000 10:16:50 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 07:17:11 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A6C@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Fri, 7 Apr 2000 07:17:04 -0700 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: Seth David Schoen [mailto:schoen@loyalty.org] ... > The significance of the HREF attribute is that it represents a claim that > (more or less) "additional related information for this text is available > in a document which may be retrieved with this URI". It's still just > markup -- assertions about the sigificance, properties, logical structure, > useful display, etc., of plain text. Very well said. Basically, a link is nothing more than a citation that certain programs can automatically retrieve for you. But the pointer to the thing is not the thing itself. I can say "this exists over -there-" and although I am providing information on that thing, I am not providing the thing itself. The people over -there- are providing it, and you have to talk with them to get 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 Apr 7 10:19:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25558 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:19:12 -0400 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 KAA25555 for ; Fri, 7 Apr 2000 10:19:09 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 07:19:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A6D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 7 Apr 2000 07:19:24 -0700 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: Paul Fenimore [mailto:fenimore@roadrunner.com] ... > > On Thu, Apr 06, 2000 at 04:55:39PM -0700, Bryan Taylor wrote: > > --- Eric Seppanen wrote: > > > > > HTML for dummies award: > > > "A hyperlink... generally refers to software instructions > which, when > > > executed, cause a signal to be sent to another location > where data or > > > material can be retrieved..." > > > > We should find a way to accept the "software instructions > which, when executed" > > part. It will be much easier to show that DVD's contains > programs given that > > they are going to stipulate that any old markup language > contains executable > > software instructions. > > Perhaps "cause" in "...cause a signal to be sent..." is the > crux? Does > it help to say the HTML tag "permits," not "causes"? Even this is > not really right, because there are other ways to do it that don't > involve tags at all (like cut from the displayed text and past the > address). > The only "cause" in the chain is the user clicking the mouse. I think we're arguing the "guns don't kill people, people do" line of reasoning. Does the gun shoot itself or is someone responsible for pulling that trigger? Does the link retrieve information itself or is someone responsible for clicking the mouse? -- -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 Apr 7 10:22:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25692 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:22:51 -0400 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 KAA25689 for ; Fri, 7 Apr 2000 10:22:49 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 07:23:11 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A6E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 7 Apr 2000 07:23:07 -0700 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: Paul Fenimore [mailto:fenimore@roadrunner.com] ... > > 17 U.S.C. 101: > > 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. > Does "indirectly" extend to the point of requiring user action? An HTML link allows the -user- to fetch the data by taking action (clicking the mouse on the link), but an HTML link does NOT in and of itself "bring about a certain result" (i.e. fetching the data). Even under this definition, it is arguable whether HTML can be considered to be a 'computer program'. The browser is the program -- the HTML is the data. (Does 17 USC 101 have a clause defining 'data'?) -- -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 Apr 7 10:28:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25889 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:28:11 -0400 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 KAA25886 for ; Fri, 7 Apr 2000 10:28:09 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 07:28:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A6F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Fri, 7 Apr 2000 07:28:23 -0700 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: Richard Hartman ... > Basically, a link is nothing more than a citation that certain > programs can automatically retrieve for you. I'm going to allow myself a slight edit here. Please read that as: Basically, a link is nothing more than a citation that certain programs can retrieve for you upon request. To use "automatically" seems to concede their contention that HTML pages are "programs". -- -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 Apr 7 10:31:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25992 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:31:18 -0400 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 KAA25989 for ; Fri, 7 Apr 2000 10:31:18 -0400 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 KAA05560 for ; Fri, 7 Apr 2000 10:31:00 -0400 (EDT) Message-Id: <4.2.2.20000407102134.00a8bcc0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 07 Apr 2000 10:30:44 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Fun with the DVDCCA FAQ 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 10:15 PM 4/6/00 -0600, Paul Fenimore wrote: >2. This type of commentary/criticism doesn't _require_ that the annotator >site maintain persistent copies of the work in question. That makes is >pretty different from criticism or commentary on the printed page. One >can argue that there is less of a question of infringement, but access >control might kill it anyway. In fact, this one doesn't store any copies of the work. Just a few non-copyrightable "short words or phrases" it needs to mark positions in the text. One could argue that it makes a copy every time it displays a work, but no more than a caching proxy, and it doesn't save those copies anywhere. I characterize it as an overlay, which the 9th Circuit at least permits (see Lewis Galoob Toys, Inc. v. Nintendo). --Wendy (who'd be happy to see the tool become popular enough that anyone *wanted* to block it) Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 10:32:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA26031 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:32:18 -0400 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 KAA26028 for ; Fri, 7 Apr 2000 10:32:16 -0400 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 KAA16385; Fri, 7 Apr 2000 10:31:50 -0400 Message-Id: <200004071431.KAA16385@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-reply-to: Your message of "Thu, 06 Apr 2000 15:53:58 MDT." <20000406155357.A2001@localhost> Date: Fri, 07 Apr 2000 10:31:20 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: : The contention in "Supplemental Declaration of Robert W. Schumann" : seems to be, roughly speaking, that "; Fri, 7 Apr 2000 10:48:59 -0400 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 KAA16481; Fri, 7 Apr 2000 10:48:34 -0400 Message-Id: <200004071448.KAA16481@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] the MPAA's argument In-reply-to: Your message of "Thu, 06 Apr 2000 17:43:54 CDT." <20000406174354.A13311@arh1176.urh.uiuc.edu> Date: Fri, 07 Apr 2000 10:48:04 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steven Barker writes: : On Thu, Apr 06, 2000 at 03:53:58PM -0600, Paul Fenimore wrote: : > : > The contention in "Supplemental Declaration of Robert W. Schumann" : > seems to be, roughly speaking, that " so that writing www.get.decsss.right.now without mark-up tags might : > be ok in the MPAA's view, putting that same string in as a reference : > is functional. : : : Cannot hyperlinks be both expressive and functional at the same time? They : implement a reference to a website, but at the same time they have text : themselves. For instance, as many of you have probably noticed, I am writing : this paragraph as a hyperlink. The functional content is "foo" but all of : this text expressive. In this case, as my functional content is symbolic, : it should be protected, just as burning a draft card is. All of this link : should be considered "speech" and protected by the first ammendment. I think you wrote an anchor, but I don't think your paragraph links to anything. Not that I think that it matters. : : Now, I don't know the situation at 2600, so I can't say if their hyperlinks : have any expressive content in them at all. But my example here does show ho : w : it could be argued. : : > 2. A hyperlink, in the context of the Internet, generally refers to : > software instructions which, when executed, cause a signal to be sent : > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ : > to another location where data or material can be retrieved for : > viewing, copying or further transmission. Historically, many of the : > : > I may be missing a few fine points after this very fast reading, but : > I think this may be the core argument. : : I think you have it prett well (or at least as well as I do). I don't think : their arguement is technically or logically sound, and I hope the EFF lawyers : can convince the judge of that. I would suggest that all hyperlinks express information in the form: ``Here's where you can find `foo'.'' That they may also be functional doesn't subtract anything from that fundamental fact. -- 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 Fri Apr 7 10:58:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA26483 for dvd-discuss-outgoing; Fri, 7 Apr 2000 10:58:13 -0400 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 KAA26480 for ; Fri, 7 Apr 2000 10:58:10 -0400 Received: from travel-net.com (trj20.travel-net.com [207.176.160.20]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id KAA30739 for ; Fri, 7 Apr 2000 10:57:54 -0400 Message-ID: <38EDF76A.9AA8D84B@travel-net.com> Date: Fri, 07 Apr 2000 10:57:46 -0400 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] the MPAA's argument References: <200004071448.KAA16481@samsara.law.cwru.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 "Peter D. Junger" wrote: > > Steven Barker writes: > > : On Thu, Apr 06, 2000 at 03:53:58PM -0600, Paul Fenimore wrote: > : > > : > The contention in "Supplemental Declaration of Robert W. Schumann" > : > seems to be, roughly speaking, that " : > so that writing www.get.decsss.right.now without mark-up tags might > : > be ok in the MPAA's view, putting that same string in as a reference > : > is functional. > : > : > : Cannot hyperlinks be both expressive and functional at the same time? They > : implement a reference to a website, but at the same time they have text > : themselves. For instance, as many of you have probably noticed, I am writing > : this paragraph as a hyperlink. The functional content is "foo" but all of > : this text expressive. In this case, as my functional content is symbolic, > : it should be protected, just as burning a draft card is. All of this link > : should be considered "speech" and protected by the first ammendment. > > I think you wrote an anchor, but I don't think your paragraph links to > anything. Not that I think that it matters. > > : > : Now, I don't know the situation at 2600, so I can't say if their hyperlinks > : have any expressive content in them at all. But my example here does show ho > : w > : it could be argued. > : > : > 2. A hyperlink, in the context of the Internet, generally refers to > : > software instructions which, when executed, cause a signal to be sent > : > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > : > to another location where data or material can be retrieved for > : > viewing, copying or further transmission. Historically, many of the > : > > : > I may be missing a few fine points after this very fast reading, but > : > I think this may be the core argument. > : > : I think you have it prett well (or at least as well as I do). I don't think > : their arguement is technically or logically sound, and I hope the EFF lawyers > : can convince the judge of that. > > I would suggest that all hyperlinks express information in the form: > ``Here's where you can find `foo'.'' That they may also be functional > doesn't subtract anything from that fundamental fact. This is indeed true. But it still has to be be argued and we can't lose sight of that fact. > > -- > 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 -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 11:17:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27381 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:17:23 -0400 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 LAA27378 for ; Fri, 7 Apr 2000 11:17:22 -0400 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 LAA16613; Fri, 7 Apr 2000 11:16:56 -0400 Message-Id: <200004071516.LAA16613@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-reply-to: Your message of "Thu, 06 Apr 2000 16:51:00 PDT." <5A8391CA2D9ED311AFAA080009D982B10B1A69@mail2.onetouch.com> Date: Fri, 07 Apr 2000 11:16:26 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: : Ridiculous. The execution is not in the document, : it is in the browser. You can load an HTML page : up in notepad, and the difference we are talking : about is seeing: : : to see more, visit : http://www.salon.com/tech/log/2000/04/06/decss/print.html : : vs. : : to see more, visit http://www. : salon.com/tech/log/2000/04/06/decss/print.html : : You see ... it's all just text. The "magic" is : in what happens when IE (or Netscape, or Opera, or ...) : loads this text and -interprets- the tags. It highlights : the text between the and markers and if the : mouse is clicked in that area, loads the page indicated : by the URL in the href. So if the crux of their argument : is "active links" vs. mere URLs, it is the -tool- that : makes the link "active" -- basically it's just data. Sure, but in essence all source code is just data. And with programmable (Von Neumann) computers there can be no fixed distinction between data and programs. Just as there is no such distinction in the case of Turing machines. I don't think that you can build a strong argument that a hyperreference is not an instruction that can be implemented by a computer and base that argument on the fact that it is an instruction to a browser. : Let's explore the concept of "active" a bit more ... if : you have some of Microsoft's fine tools, then the : tags are not needed to make a link active. Those of you : reading this message using Outlook will probably see : the URL in the first of the above alternatives as blue : with underlining. If you click on it, you will launch : IE and load that page -- even though it does -not- have : the "active link" marker tags. Outlook makes EVEN UNTAGGED : URLs IN PLAIN TEXT MESSAGES "active", as do recent versions : of MS Word (I think). So EVERY PLAIN URL in any text : document can be considered to be an "active" link if : viewed with certain applications! Right. So our friends get no benefit from claiming that the link is active or functional. : The MPAA's argument is gibberish, and should be shredded : by whoever is arguing against them on it's technical : merits. I really don't see how it has any legal merit, and that is easier to explain to a judge: To quote from the 6th Circuit in Junger v. Daley: Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment. Now I know that that holding only binds the 6th Circuit, but the way that it is phrased would make it almost impossible for another Circuit or the Supreme Court to disagree. And once one excepts that holding, then the fact that source code (including source code written in HTML) is functional, or ``active,'' is relevant only to the issue of whether there is some other interest that is so important that it justifies trumping the First Amendment. That is clearly recognized by the 6th Circuit's opinion: The functional capabilities of source code . . . should be considered when analyzing the governmental interest in regulating the exchange of this form of speech. So one doesn't have to worry about whether it is text or an instruction in HTML, for both are expressive and both are constitutionally protected. 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 Fri Apr 7 11:22:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27629 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:22:16 -0400 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 LAA27626 for ; Fri, 7 Apr 2000 11:22:14 -0400 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 LAA16663; Fri, 7 Apr 2000 11:21:57 -0400 Message-Id: <200004071521.LAA16663@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-reply-to: Your message of "Thu, 06 Apr 2000 17:01:35 PDT." <5A8391CA2D9ED311AFAA080009D982B10B1A6A@mail2.onetouch.com> Date: Fri, 07 Apr 2000 11:21:57 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: : An Wired news article on the injunction against : links to cphack may be pertinant as well: : : http://www.wired.com/news/business/0,1367,35464,00.html : : Significant quote: : "The legal issue here is whether a Boston court has jurisdiction over the : entire Internet, and our answer to that is a resounding 'no,'" said ACLU : senior staff attorney Chris Hansen. What it the citation of the English case that asks something like: ``Can the Island of Tobago make a law to bind the whole world?'' -- 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 Fri Apr 7 11:32:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA27993 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:32:21 -0400 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 LAA27980 for ; Fri, 7 Apr 2000 11:32:16 -0400 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 LAA16735; Fri, 7 Apr 2000 11:31:50 -0400 Message-Id: <200004071531.LAA16735@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-reply-to: Your message of "Thu, 06 Apr 2000 18:15:27 MDT." <20000406181525.B3391@localhost> Date: Fri, 07 Apr 2000 11:31:20 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: : On Thu, Apr 06, 2000 at 06:57:35PM -0500, sam th wrote: : > On Thu, 6 Apr 2000, Paul Fenimore wrote: : > > The contention in "Supplemental Declaration of Robert W. Schumann" : > > seems to be, roughly speaking, that " > so that writing www.get.decsss.right.now without mark-up tags might : > > be ok in the MPAA's view, putting that same string in as a reference : > > is functional. : > > : > > 2. A hyperlink, in the context of the Internet, generally refers to : > > software instructions which, when executed, cause a signal to be sent : > > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ : > > to another location where data or material can be retrieved for : > > viewing, copying or further transmission. Historically, many of the : > > : > > I may be missing a few fine points after this very fast reading, but : > > I think this may be the core argument. : > > : > > Paul Fenimore : > > : > : > Junger v United States - : > : > "The fact that a medium of expression has a functional capacity should not : > preclude constitutional protection. " : : I agree, but this is why they are trying to tie the html link to the : function of DeCSS: then they can make an intellectual property issue : out of the link. : : If they succeed, there are balancing issues between copyright and the First. Only if the ``access'' right in 1201(a) is a copyright right, which it ain't. In fact, one of the strongest arguments for a court's reading 1201(a)'s anti-circumvention provisions as applying only to the initial access by which one obtains a copy is that that reading avoids the necessity of balancing the non-circumvention provisions against the First Amendment in cases where what is being circumvented is something like DeCSS that does not regulate initial access, but access only to the DVD that one has already bought from a store. -- 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 Fri Apr 7 11:34:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28130 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:34:54 -0400 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 LAA28127 for ; Fri, 7 Apr 2000 11:34:53 -0400 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 LAA20008 for ; Fri, 7 Apr 2000 11:34:42 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA12630; Fri, 7 Apr 2000 11:34:41 -0400 (EDT) Date: Fri, 7 Apr 2000 11:34:41 -0400 (EDT) Message-Id: <200004071534.LAA12630@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] An Outline -- equal protection clause In-Reply-To: <20000406142519.A31060@thud.reric.net> References: <4.2.2.20000320143107.00c18dc0@law.harvard.edu> <20000406102451.A818@localhost> <20000406121221.A30769@thud.reric.net> <200004061829.OAA00810@soggy-fibers.ai.mit.edu> <20000406142519.A31060@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > On Thu, Apr 06, 2000 at 02:29:27PM -0400, Robert S. Thau wrote: > > From the conference committee report: > > > > Persons may also choose to implement a technological > > measure without vetting it through an inter-industry > > consultative process, or without regard to the input of > > affected parties. > > I liked it the first time I read it and still do. I agree the legislative > history supports the claim that 1201 was not meant to be a requirement for > hardware and software designers to include access controls at the demand > of copyright owners. > > But they seem to be blindly ignoring the route that the copyright owners > took: demand an industry standards group (DVD Forum) design in their > "access control" mechanism and require it of licensed designers (enforced > with trade secrets, patents, etc.) This isn't covered under 1201. On the other hand, it's not part of their complaint in the New York and Connecticut cases either --- they're not claiming trade secret violation in those cases (though they are in California); instead, they're claiming that anything that does CSS decryption without a license is, ipso facto, a circumvention tool, whether or not it does so for any illegitimate purpose. But 1201(c)(3) was specifically added to the law to prevent, say, a PC-video card from being considered a circumvention tool because it strips off Macrovision --- a precisely analogous case. Sen. Ashcroft: By way of example, during the course of our deliberations, we were made aware of certain video boards used in personal computers in order to allow consumers to receive television signals on their computer monitors which, in order to transform the television signal from a TV signal to one capable of display on a computer monitor, remove attributes of the original signal that may be associated with certain copy control technologies. I am acutely aware of this particular example because I have one of these video boards on my own computer back in my office. It is quite useful as it allows me to monitor the Senate floor, and occasionally ESPN on those rare occasions when the Senate is not in session. My amendment makes it clear that this legislation does not require that such transformations, which are part of the normal conversion process rather than affirmative attempts to remove or circumvent copy control technologies, fall within the proscriptions of chapter 12 of the copyright law as added by this bill. See also the *numerous* comments in the legislative history to the effect that the sole purpose of 1201 is to ban "black boxes", which was clearly understood as devices that actually provide unauthorized access (1201(a)) or produce unauthorized copies (1201(b)), and have no other purpose, except for cooked-up contrivances. The CSS decryption code at issue here has the perfectly legitimate purpose, by contrast, of making a DVD player. It might also be used to produce tools for manufacturing illegal copies --- and the MPAA is, on my interpretation of the law, perfectly free to go after those when they appear. But the CSS decryption code itself has a legitimate purpose (building a DVD player without joining their pet cartel), and they're overreaching when they go after it. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 11:49:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28803 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:49:00 -0400 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 LAA28800 for ; Fri, 7 Apr 2000 11:48:59 -0400 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 LAA16815; Fri, 7 Apr 2000 11:48:34 -0400 Message-Id: <200004071548.LAA16815@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Journalist's error of the day In-reply-to: Your message of "Thu, 06 Apr 2000 17:08:34 PDT." <20000406170834.X23385@cty-alum.org> Date: Fri, 07 Apr 2000 11:48:04 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen writes: : Maybe the 6th Circuit is a good place to be right now if you want to : publish controversial software, or links to it. If someone who's read : everything in _Bernstein_ lately would care to compare _Bernstein_ and : _Junger_ for us, I'd be pretty interested. I haven't read everything in _Bernstein_ lately, but the big difference is that Berstein won in the District Court, and then won again in the Ninth Circuit, but that decision was withdrawn when the Circuit granted the government's motion for a rehearing _en banc_, and then, when the regulations were recently amended, the Circuit remanded the case to the District Court, whereas I lost when the District Court dismissed my complaint on the government's motion for summary judgement, and the Sixth Circuit reversed that decision, entered its judgment that source code is protected by the First Amendment, and then remanded the case to the District Court to determine the effect of the new regulations. Sometimes one wins by losing. So at the moment the only Circuit that has passed on the constitutional protection of source code is the Sixth. But do you really think that any court is going to hold that HTML markup is not protected by the First Amendment, when the only argment that it isn't so protected is that it is arguably source code, which the Sixth Ciruit has held is protected because source code is ``expressive''? I doubt that any court wants to hear argument about the technical nature of HTML, when they can just say, ``whether or not it is a computer program, it is still expressive.'' -- 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 Fri Apr 7 11:55:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29134 for dvd-discuss-outgoing; Fri, 7 Apr 2000 11:55:53 -0400 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 LAA29131 for ; Fri, 7 Apr 2000 11:55:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 08:56:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A75@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Fri, 7 Apr 2000 08:56:09 -0700 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: Peter D. Junger > I doubt that any court wants to hear > argument about the > technical nature of HTML, when they can just say, ``whether or not > it is a computer program, it is still expressive.'' Moreover -- since the issue of primary purpose and additional purposes seems to be a tentpole in this whole DVD circus -- even if you grant that HTML is a computer program it is not merely that "it is still expressive", it can be stated that "it's primary purpose is expressive". Any "computer program" characteristics are purely secondary. -- -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 Apr 7 12:55:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30169 for dvd-discuss-outgoing; Fri, 7 Apr 2000 12:55:17 -0400 Received: from dial154.roadrunner.com (dial154.cybermesa.com [209.12.75.154]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA30166 for ; Fri, 7 Apr 2000 12:55:14 -0400 Received: (from paul@localhost) by dial154.roadrunner.com (8.8.7/8.8.7) id KAA00722 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 10:58:42 -0600 Date: Fri, 7 Apr 2000 10:58:41 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000407105840.A588@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1A6E@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A6E@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 07:23:07AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 07:23:07AM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Paul Fenimore > ... > > > > 17 U.S.C. 101: > > > > 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. > > Does "indirectly" extend to the point of requiring user > action? An HTML link allows the -user- to fetch the data > by taking action (clicking the mouse on the link), but an > HTML link does NOT in and of itself "bring about a certain > result" (i.e. fetching the data). Right. It doesn't bring about the fetch, but it does cause the browser to present a link to the user. The little game the folks at Prokauser Rose want to play is conflating those two "results." > Even under this definition, it is arguable whether HTML > can be considered to be a 'computer program'. The browser > is the program -- the HTML is the data. (Does 17 USC 101 > have a clause defining 'data'?) I disagree. This definition is a drag-net trawl that sweeps up everything. My _guess_ is that this is exactly what Congress wanted: no "loop-holes" to define things out of being a program, and thus evade liability. As we both know, this has many side-effects. We (dvd-discuss) had a long and relatively fruitless discussion of this about a month ago. Many programmers do not want to call HTML a programming language because nearly all trivial programming problems are insoluble using HTML alone. I don't think we need the court to find that HTML is data to win. Aside from the fact that the judge has to use the s.101 definition of "program," there is the problem that the courts have found that even spoken words can be so close to instigating actions that they are "functional" ("fighting words.") Getting HTML declared "data only, and not a program," wouldn't completely shut off this avenue. I think a reasonable starting point for a defense/counter-attack is: 1. Code is speech and is afforded protection by the First. a. URLs are references. So are law references. Does a hyperlink to www.law.cornell.edu constitute providing the text of the decision or providing a reference to the decision? b. What good would the reference to a court decision do, if the desired volume of F.2d isn't on the shelf when you get there? (Calling all broken links, calling all broken links.) 2. The act of fetching is an act of the remote user, not 2600. a. There is an act of selection by a real, live human when they click on some links. 3. tags do not constitute "providing" DeCSS. a. DeCSS is on another computer. b. No part of the DeCSS program ever passes through 2600. c. Hostname URL's in tags are not "hard-wired" as the MPAA claims. i. DNS. (Open telephone book, extract street address of the law library.) ii. routing. (Friend says, "Drive to the library, enter, turn right, walk to the 5th isle, turn left, F. Supp is on the left side of the isle.") iii. Broken links. d. IP numbers in tags are not "hard-wired". i. routing. ii. Broken link. e. In contrast, fetching a file from 2600 after initial loading of their homepage makes no further use of DNS. 4. is not necessary to make a link, urlview does this same thing by scanning for untagged URLs. Whether an tag is necessary for presenting a link to the user, or merely listing the URL without mark-up in the file does the same thing, is beyond 2600's control. If providing a reference is found to also constitute providing the data on the remote machine, then to prevent the formation of "automatic" links on _all_ user's computers would require that URLs without meta-tags be purged from 2600's site. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 13:12:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30599 for dvd-discuss-outgoing; Fri, 7 Apr 2000 13:12:11 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30596 for ; Fri, 7 Apr 2000 13:12:10 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12dcIX-00060H-00; Fri, 7 Apr 2000 19:11:57 +0200 Received: from localhost by sites.inka.de with local id 12dcIY-0000PQ-00; Fri, 7 Apr 2000 19:11:58 +0200 Date: Fri, 7 Apr 2000 19:11:58 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000407191158.A1453@inka.de> References: <20000406170834.X23385@cty-alum.org> <200004071548.LAA16815@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004071548.LAA16815@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Fri, Apr 07, 2000 at 11:48:04AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 11:48:04AM -0400, Peter D. Junger wrote: > Seth David Schoen writes: > > : Maybe the 6th Circuit is a good place to be right now if you want to > is that Berstein won in the District Court, and then won again in the > Ninth Circuit, Could someone enlighten me as to what Circuits are? (I don't live in the US) Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 13:55:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31636 for dvd-discuss-outgoing; Fri, 7 Apr 2000 13:55:39 -0400 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 NAA31633 for ; Fri, 7 Apr 2000 13:55:38 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id CDBC376F1; Fri, 7 Apr 2000 13:55:58 -0500 (CDT) Date: Fri, 7 Apr 2000 13:55:58 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000407135558.A16400@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A75@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A75@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 08:56:09AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 08:56:09AM -0700, Richard Hartman wrote: > > -----Original Message----- > > From: Peter D. Junger > > > I doubt that any court wants to hear > > argument about the > > technical nature of HTML, when they can just say, ``whether or not > > it is a computer program, it is still expressive.'' > > > Moreover -- since the issue of primary purpose and additional purposes seems > to be a tentpole in this whole DVD circus -- even if you grant that HTML is > a computer program it is not merely that "it is still expressive", > it can be stated that "it's primary purpose is expressive". Any "computer > program" characteristics are purely secondary. Well, I think that is a *very* dangerous argument. I think that their arguement for why 2600's links should be taken down is becaue their primary purpose is functional, in that they send people somewhere to get DeCSS. I don't know that we can automatically argue that links are expressive, just because they are "data". I don't know off the top of my head what the legal definition of "expressive" is, but the MPAA is likely to argue that a URL has only a small amount of expressive value and when included in a link even that small amount of expression is hidden for the most part from the viewer. I do hope that the precident set in the Junger case, though not binding in NY, will persuade the Judge that HTML, like source code (and probably more so in most cases) is protected because of it's expressive content. I am curious of how it will apply to the MPAA's motion to block links, which are only a small part of HTML pages (usually) and who's expressive content in themselves may be limited. -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: The end of the world will occur at three p.m., this Friday, with symposium to follow. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 13:56:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31686 for dvd-discuss-outgoing; Fri, 7 Apr 2000 13:56:02 -0400 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 NAA31682 for ; Fri, 7 Apr 2000 13:56:01 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA24932 for ; Fri, 7 Apr 2000 13:55:50 -0400 (EDT) Date: Fri, 7 Apr 2000 13:55:50 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Circuit court of appeals In-Reply-To: <20000407191158.A1453@inka.de> 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, 7 Apr 2000, Sham Gardner wrote: > Could someone enlighten me as to what Circuits are? (I don't live in the US) > > Sham > Sure. A circuit is a geographic area of jurisdiction for an appeals court. There are 13 circuit courts (1st--11th + DC + Federal). The following table shows how the various states fall in to the circuits. http://www.jurisline.com/juris_chart.cfm Generally, the opinions of an appeals court are regarded as precedent only in its respective circuit. The 6th circuit ruled that "The functional capabilities of source code, and particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech, " 2000 U.S. App. LEXIS 6161 (Junger v Daley), but courts in other circuits may not be bound by this decision. In fact, the 2nd circuit might rule that source code does not constitute speech, so that Ohio programs would be protected, but New York programs would not be. Usually, (but not always), the Supreme Court resolves the issue. The MPAA case is currently being tried in the Southern District of New York, which is in the Second Circuit. Thus, when searching for legal precedents, one should concentrate on 2nd Circuit and Supeme Court opinions. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 14:09:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32279 for dvd-discuss-outgoing; Fri, 7 Apr 2000 14:09:10 -0400 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 OAA32276 for ; Fri, 7 Apr 2000 14:09:09 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 11:09:30 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A76@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Fri, 7 Apr 2000 11:09:23 -0700 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] > Sent: Friday, April 07, 2000 11:56 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Journalist's error of the day > > > On Fri, Apr 07, 2000 at 08:56:09AM -0700, Richard Hartman wrote: > > > -----Original Message----- > > > From: Peter D. Junger > > > > > I doubt that any court wants to hear > > > argument about the > > > technical nature of HTML, when they can just say, ``whether or not > > > it is a computer program, it is still expressive.'' > > > > > > Moreover -- since the issue of primary purpose and > additional purposes seems > > to be a tentpole in this whole DVD circus -- even if you > grant that HTML is > > a computer program it is not merely that "it is still expressive", > > it can be stated that "it's primary purpose is expressive". > Any "computer > > program" characteristics are purely secondary. > > Well, I think that is a *very* dangerous argument. I think that their > arguement for why 2600's links should be taken down is becaue > their primary > purpose is functional, in that they send people somewhere to > get DeCSS. I > don't know that we can automatically argue that links are > expressive, just > because they are "data". I don't know off the top of my head > what the legal > definition of "expressive" is, but the MPAA is likely to > argue that a URL has > only a small amount of expressive value and when included in > a link even that > small amount of expression is hidden for the most part from > the viewer. > The argument is not that the -link- is expressive (although that argument could be made as well), it is that HTML is (primarily) expressive, not a "program". Links are a part of HTML. -- -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 Apr 7 14:09:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32386 for dvd-discuss-outgoing; Fri, 7 Apr 2000 14:09:46 -0400 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 OAA32383 for ; Fri, 7 Apr 2000 14:09:45 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA22826 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 11:04:57 -0700 Date: Fri, 7 Apr 2000 11:04:56 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000407110456.F23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A6E@mail2.onetouch.com> <20000407105840.A588@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000407105840.A588@localhost>; from fenimore@roadrunner.com on Fri, Apr 07, 2000 at 10:58:41AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > We (dvd-discuss) had a long and relatively fruitless discussion of this > about a month ago. Many programmers do not want to call HTML a programming > language because nearly all trivial programming problems are insoluble > using HTML alone. There are many other further reasons not to call HTML a programming language, besides this. I'd go so far as to say that the main reason HTML ever gets called a "programming language" is for the presumed benefit of people who think that "learning a formal syntax that can be parsed by a computer" is "programming". -- 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 Apr 7 14:11:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32456 for dvd-discuss-outgoing; Fri, 7 Apr 2000 14:11:39 -0400 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 OAA32453 for ; Fri, 7 Apr 2000 14:11:38 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 11:12:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A77@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 7 Apr 2000 11:11:50 -0700 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 think 2a below is the most pertinant point: the act of fetching the data is instigated by the user. A link does nothing in and of itself. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > Sent: Friday, April 07, 2000 9:59 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] MPAA v. 2600 Motion > > > On Fri, Apr 07, 2000 at 07:23:07AM -0700, Richard Hartman wrote: > > > > > -----Original Message----- > > > From: Paul Fenimore > > ... > > > > > > 17 U.S.C. 101: > > > > > > 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. > > > > Does "indirectly" extend to the point of requiring user > > action? An HTML link allows the -user- to fetch the data > > by taking action (clicking the mouse on the link), but an > > HTML link does NOT in and of itself "bring about a certain > > result" (i.e. fetching the data). > > Right. It doesn't bring about the fetch, but it does cause the > browser to present a link to the user. The little game the folks > at Prokauser Rose want to play is conflating those two "results." > > > Even under this definition, it is arguable whether HTML > > can be considered to be a 'computer program'. The browser > > is the program -- the HTML is the data. (Does 17 USC 101 > > have a clause defining 'data'?) > > I disagree. This definition is a drag-net trawl that sweeps up > everything. My _guess_ is that this is exactly what Congress > wanted: no "loop-holes" to define things out of being a program, > and thus evade liability. > > As we both know, this has many side-effects. > > We (dvd-discuss) had a long and relatively fruitless > discussion of this > about a month ago. Many programmers do not want to call HTML > a programming > language because nearly all trivial programming problems are > insoluble > using HTML alone. > > I don't think we need the court to find that HTML is data to win. > Aside from the fact that the judge has to use the s.101 definition > of "program," there is the problem that the courts have found that > even spoken words can be so close to instigating actions that they > are "functional" ("fighting words.") Getting HTML declared "data only, > and not a program," wouldn't completely shut off this avenue. > > I think a reasonable starting point for a defense/counter-attack is: > > 1. Code is speech and is afforded protection by the First. > a. URLs are references. So are law references. Does > a hyperlink to www.law.cornell.edu constitute providing > the text of the decision or providing a reference to the > decision? > b. What good would the reference to a court decision do, if > the desired volume of F.2d isn't on the shelf when you get > there? (Calling all broken links, calling all broken links.) > 2. The act of fetching is an act of the remote user, not 2600. > a. There is an act of selection by a real, live human when > they click on some links. > 3. tags do not constitute "providing" DeCSS. > a. DeCSS is on another computer. > b. No part of the DeCSS program ever passes through 2600. > c. Hostname URL's in tags are not "hard-wired" > as the MPAA > claims. > i. DNS. (Open telephone book, extract street > address of the > law library.) > ii. routing. (Friend says, "Drive to the library, > enter, turn > right, walk to the 5th isle, turn left, F. > Supp is on the > left side of the isle.") > iii. Broken links. > d. IP numbers in tags are not "hard-wired". > i. routing. > ii. Broken link. > e. In contrast, fetching a file from 2600 after initial > loading of > their homepage makes no further use of DNS. > 4. is not necessary to make a link, urlview does > this same thing > by scanning for untagged URLs. Whether an tag is > necessary > for presenting a link to the user, or merely listing the > URL without > mark-up in the file does the same thing, is beyond 2600's > control. If > providing a reference is found to also constitute > providing the data > on the remote machine, then to prevent the formation of > "automatic" > links on _all_ user's computers would require that URLs without > meta-tags be purged from 2600's site. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 15:20:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03418 for dvd-discuss-outgoing; Fri, 7 Apr 2000 15:20:07 -0400 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 PAA03415 for ; Fri, 7 Apr 2000 15:20:06 -0400 Received: by arh1176.urh.uiuc.edu (Postfix, from userid 501) id 9F9FB76F1; Fri, 7 Apr 2000 15:20:26 -0500 (CDT) Date: Fri, 7 Apr 2000 15:20:26 -0500 From: Steven Barker To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000407152026.A16498@arh1176.urh.uiuc.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A76@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A76@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 11:09:23AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 11:09:23AM -0700, Richard Hartman wrote: > > -----Original Message----- > > From: Steven Barker [mailto:steve@arh1176.urh.uiuc.edu] > > > > Well, I think that is a *very* dangerous argument. I think that their > > arguement for why 2600's links should be taken down is becaue > > their primary > > purpose is functional, in that they send people somewhere to > > get DeCSS. I > > don't know that we can automatically argue that links are > > expressive, just > > because they are "data". I don't know off the top of my head > > what the legal > > definition of "expressive" is, but the MPAA is likely to > > argue that a URL has > > only a small amount of expressive value and when included in > > a link even that > > small amount of expression is hidden for the most part from > > the viewer. > > > > The argument is not that the -link- is expressive (although > that argument could be made as well), it is that HTML is > (primarily) expressive, not a "program". Links are a part > of HTML. Well, the links to sites that have DeCSS are what the MPAA wants an injunction over. If the links are only expressive, then the first ammendment protects them. But when speech has functional content, the government is able to restrict it. Shouting "Fire!" in a movie theater is one common example, but a better one perhaps would be inciting a riot. If you jump up in front of an angry crowd and tell them to go break down the doors of town hall of the federal building or the courthouse, you are breaking the law. Even though your speech is expressive, the importance of the functional aspects of it (ie getting people to go do illegal stuff) outweighs your right to free speech. The Junger ruling, where the judge rules that computer source code is both functional and expressive, does not condem all regulation of source code. His language is something to the effect that the Government must take the expressive content into account when making any regulation (I don't have it in front of me at the moment, so if I'm way off here, please correct me). So the links that 2600 has up to other sights can be banned if the judge feels that their functional content is more important than their protection under the first ammendment. I do wonder, as I have not been to 2600 in a couple weeks, (and didn't check the mirrors then) what the links are to. If they are directly to mirrors of the DeCSS.zip file, I could see the real possibility of the Judge banning them. But if the links are to a page at another site which has more content than DeCSS (even if it is only descriptions of it) then I would feel that the functional nature of the link that the MPAA objects to (providing DeCSS) is sufficiently diluted by other material to be outweighed by 2600's first ammendment rights. I really hope the Judge denies the motion, but I don't think it is as unlikely as discussion has suggested. -- Steven Barker scbarker@uiuc.edu Random sig shamelessly stolen from Fortune: The man who raises a fist has run out of ideas. -- H.G. Wells, "Time After Time" From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 15:39:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03915 for dvd-discuss-outgoing; Fri, 7 Apr 2000 15:39:07 -0400 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 PAA03912 for ; Fri, 7 Apr 2000 15:39:05 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id MAA22915 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 12:34:18 -0700 Date: Fri, 7 Apr 2000 12:34:17 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000407123417.I23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A76@mail2.onetouch.com> <20000407152026.A16498@arh1176.urh.uiuc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000407152026.A16498@arh1176.urh.uiuc.edu>; from steve@arh1176.urh.uiuc.edu on Fri, Apr 07, 2000 at 03:20:26PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The MPAA made a variety of claims, and most of us here have been paying attention to only one. Let's summarize: - First, the MPAA says that 2600 is violating the injunction by "providing" DeCSS by means of links. The MPAA uses totally preposterous theories about how the web works, and commits all sorts of fallacies and egregious technical errors. - Second, the MPAA says that 2600 is violating the injunction by, roughly speaking, _helping people get_ DeCSS. (For instance, they allege "contributory" violations of the DMCA.) Here, I'm not sure that the MPAA is wrong. In other words, they've first denied (incorrectly) that hypertext markup is speech. But after that, they've asserted that 2600 is doing something to help people get DeCSS. One way to look at this is that, while helping people get DeCSS might be legal for the general public (although the MPAA would say that it is not because DeCSS is illegal for everyone, everywhere), it might not be legal for someone who is bound by an injunction against distributing it, because such a person _is_ trying to circumvent the intent of the injunction (to limit the distribution of DeCSS) by advising the public of means by which they can obtain DeCSS. This raises the question of whether injunctions against controversial behavior ordinarily extend to preventing the subject of the injunction from helping the public find others who are still engaging in the behavior at issue. One analogy might be: suppose that someone is trying to challenge the legality of abortions, and obtains an injunction against a doctor forbidding him from performing any abortions, etc., etc., during the pendency of the case. Will the injunction be phrased to prohibit, or would it be construed to prohibit, the doctor from making a public statements about other abortion providers? The doctor might want to say something like I want abortions to be available to anyone who requests them. To that end, although I am not allowed to perform abortions myself, I will publicize the fact that Dr. John Smith in Cincinnati is qualified to perform abortions and is not bound by an injunction prohibiting him from doing so. I don't know the answer to this question, because I am really unfamiliar with injunctions in general. But the really important point is that 2600 _is_ trying to help people get copies of DeCSS (although not "providing" them or doing anything other than publicizing existing independent sources). Does that intent violate the injunction, at least potentially? -- 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 Apr 7 15:49:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04768 for dvd-discuss-outgoing; Fri, 7 Apr 2000 15:49:52 -0400 Received: from web213.mail.yahoo.com (web213.mail.yahoo.com [128.11.68.113]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA04765 for ; Fri, 7 Apr 2000 15:49:41 -0400 Received: (qmail 16773 invoked by uid 60001); 7 Apr 2000 19:49:27 -0000 Message-ID: <20000407194927.16772.qmail@web213.mail.yahoo.com> Received: from [209.206.60.140] by web213.mail.yahoo.com; Fri, 07 Apr 2000 12:49:27 PDT Date: Fri, 7 Apr 2000 12:49:27 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] Journalist's error of the day 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 What you are saying makes sense, but again, we are speaking about intangibles here. ...This is not a newspaper at a convenience store scenario. The data file is not physical. In the case of someone shouting break down the door and the angry mob does such, yes, someone instigated this physical action. There is no door to break down here.(well...) If someone shouted at some angry mob "Read that newspaper", "read this article", then, I don't think there would be any legal liability in that, or would there... -m --- Steven Barker wrote: > On Fri, Apr 07, 2000 at 11:09:23AM -0700, Richard > Hartman wrote: > > > -----Original Message----- > > > From: Steven Barker > [mailto:steve@arh1176.urh.uiuc.edu] > > > > > > Well, I think that is a *very* dangerous > argument. I think that their > > > arguement for why 2600's links should be taken > down is becaue > > > their primary > > > purpose is functional, in that they send people > somewhere to > > > get DeCSS. I > > > don't know that we can automatically argue that > links are > > > expressive, just > > > because they are "data". I don't know off the > top of my head > > > what the legal > > > definition of "expressive" is, but the MPAA is > likely to > > > argue that a URL has > > > only a small amount of expressive value and when > included in > > > a link even that > > > small amount of expression is hidden for the > most part from > > > the viewer. > > > > > > > The argument is not that the -link- is expressive > (although > > that argument could be made as well), it is that > HTML is > > (primarily) expressive, not a "program". Links are > a part > > of HTML. > > Well, the links to sites that have DeCSS are what > the MPAA wants an injunction > over. If the links are only expressive, then the > first ammendment protects > them. But when speech has functional content, the > government is able to > restrict it. Shouting "Fire!" in a movie theater is > one common example, but a > better one perhaps would be inciting a riot. If you > jump up in front of an > angry crowd and tell them to go break down the doors > of town hall of the > federal building or the courthouse, you are breaking > the law. Even though your > speech is expressive, the importance of the > functional aspects of it (ie > getting people to go do illegal stuff) outweighs > your right to free speech. > > The Junger ruling, where the judge rules that > computer source code is both > functional and expressive, does not condem all > regulation of source code. His > language is something to the effect that the > Government must take the > expressive content into account when making any > regulation (I don't have it in > front of me at the moment, so if I'm way off here, > please correct me). So the > links that 2600 has up to other sights can be banned > if the judge feels that > their functional content is more important than > their protection under the > first ammendment. > > I do wonder, as I have not been to 2600 in a couple > weeks, (and didn't check > the mirrors then) what the links are to. If they > are directly to mirrors of > the DeCSS.zip file, I could see the real possibility > of the Judge banning > them. But if the links are to a page at another > site which has more content > than DeCSS (even if it is only descriptions of it) > then I would feel that > the functional nature of the link that the MPAA > objects to (providing DeCSS) > is sufficiently diluted by other material to be > outweighed by 2600's first > ammendment rights. > > I really hope the Judge denies the motion, but I > don't think it is as unlikely > as discussion has suggested. > > -- > Steven Barker > scbarker@uiuc.edu > > Random sig shamelessly stolen from Fortune: > > The man who raises a fist has run out of ideas. > -- H.G. Wells, "Time After Time" > __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 16:11:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05869 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:11:32 -0400 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 QAA05866 for ; Fri, 7 Apr 2000 16:11:32 -0400 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 QAA09913 for ; Fri, 7 Apr 2000 16:11:19 -0400 (EDT) Message-Id: <4.2.2.20000407154906.00cf6bf0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 07 Apr 2000 16:11:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Linking injunction (was Re: [dvd-discuss] Journalist's error of the day) In-Reply-To: <20000407123417.I23385@cty-alum.org> References: <20000407152026.A16498@arh1176.urh.uiuc.edu> <5A8391CA2D9ED311AFAA080009D982B10B1A76@mail2.onetouch.com> <20000407152026.A16498@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 12:34 PM 4/7/00 -0700, schoen@loyalty.org wrote: >The MPAA made a variety of claims, and most of us here have been paying >attention to only one. ... >- Second, the MPAA says that 2600 is violating the injunction by, roughly >speaking, _helping people get_ DeCSS. (For instance, they allege >"contributory" violations of the DMCA.) Here, I'm not sure that the MPAA is >wrong. > >In other words, they've first denied (incorrectly) that hypertext markup >is speech. But after that, they've asserted that 2600 is doing something >to help people get DeCSS. Exactly. I'd go so far as to say that it's precisely the expressive content of the link that the MPAA wants to enjoin. They want to prevent 2600 from telling anyone else where to find DeCSS. They fall flat on their face when claiming that a hyperlink isn't speech, but may yet have half a chance with the argument that it's speech that incites violation of the law (under MPAA interpretation of the law) or is in contempt of the injunction against distribution. (only half a chance, I hope) The counterargument is just as firmly rooted in free speech arguments -- that an injunction on the speech is vague (the content of the prohibition depends on what's on the other side of links to third-party sites); overbroad (all sorts of advocacy is blocked); an impermissible prior restraint (prohibiting future speech before the judge reviews the particular expression at issue);and viewpoint-based (you can link to sites that advocate the MPAA's point of view, but not anti-DMCA sites that might, incidentally, link to DeCSS); at the least. The hyperlink still requires action from the person who sees a page with blue underlines. We need to look at the law on injunctions more closely for arguments on Seth's later points. >This raises the question of whether injunctions against controversial >behavior ordinarily extend to preventing the subject of the injunction >from helping the public find others who are still engaging in the >behavior at issue. > >One analogy might be: suppose that someone is trying to challenge the >legality of abortions, and obtains an injunction against a doctor forbidding >him from performing any abortions, etc., etc., during the pendency of the >case. > >Will the injunction be phrased to prohibit, or would it be construed to >prohibit, the doctor from making a public statements about other >abortion providers? The doctor might want to say something like > > I want abortions to be available to anyone who requests them. To > that end, although I am not allowed to perform abortions myself, > I will publicize the fact that Dr. John Smith in Cincinnati is > qualified to perform abortions and is not bound by an injunction > prohibiting him from doing so. > >I don't know the answer to this question, because I am really unfamiliar >with injunctions in general. > >But the really important point is that 2600 _is_ trying to help people >get copies of DeCSS (although not "providing" them or doing anything >other than publicizing existing independent sources). Does that intent >violate the injunction, at least potentially? > >-- >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 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 Fri Apr 7 16:18:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06041 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:18:25 -0400 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 QAA06038 for ; Fri, 7 Apr 2000 16:18:25 -0400 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 QAA14024 for ; Fri, 7 Apr 2000 16:18:12 -0400 (EDT) Message-Id: <4.2.2.20000407154242.00cf26f0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 07 Apr 2000 16:17:59 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Updates from the code-is-law front 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 Is this an "access control"? Edgar Online, a source for the SEC's securities filings, has changed its display of search results from text links to graphics and imagemaps, presumably to discourage automated crawlers and bulk downloaders. It also claims that its "Online HTML version" is "read only" and "cannot be downloaded and is unsuitable for printing." See if the link works. If I create a bot that follows all the necessary links (going in with a referer from a Yahoo! site to get the cobranded free access), am I circumventing? What if I --horrors-- slurp the source of the framed webpage and replace the tiny font sizes with larger ones before printing? Am I safe because all of this is public record information and Edgar doesn't have copyright in it? --Wendy (speaking hypothetically, of course) Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 16:24:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06317 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:24:36 -0400 Received: from dial70.roadrunner.com (dial70.cybermesa.com [209.12.75.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06210 for ; Fri, 7 Apr 2000 16:24:31 -0400 Received: (from paul@localhost) by dial70.roadrunner.com (8.8.7/8.8.7) id OAA01906 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 14:28:08 -0600 Date: Fri, 7 Apr 2000 14:28:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000407142807.B1710@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1A77@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A77@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 11:11:50AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 11:11:50AM -0700, Richard Hartman wrote: > I think 2a below is the most pertinant point: > the act of fetching the data is instigated by the > user. A link does nothing in and of itself. But 2.a is not going to be enough on its own. Showing that the user took the affirmative step of acquiring the DeCSS program by clicking does nothing to address another allegation the MPAA raise: that 2600 is "providing" DeCSS. If we only make point 2.a, the MPAA come back and say: "but if a patron walks into a library, the fact that the customer picks up the book does nothing to show that the library did not provide the book." We have to show that 2600 told you where the library is, but that someone else operates the library. I want to re-empahsize the point about broken links: *The reason that broken links exist is that a link is a reference, not the thing itself.* The fact that one can cook up an automated method to update or remove broken links does not lessen this point, if anything it strengthens it. The need for such a remedy proves the existence of the problem. A link is "mere mention" in a standardized form. The MPAA blabber about instructions that are hard-wired to take you someplace fails to show that mention is erased by function. Their complaint is that the function, is well, efficient. Their talk about search engines as an acceptable "alternative" to linking fails to address _either_ the referential nature of a URL or the functional aspect of a tag. How do they think those nice little links on the search results page work? Their complaint is that the web functions well, not that it is functional. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 16:26:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06502 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:26:21 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06499 for ; Fri, 7 Apr 2000 16:26:20 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12dfKS-0005gZ-00; Fri, 7 Apr 2000 22:26:08 +0200 Received: from localhost by sites.inka.de with local id 12dfKU-0001Lm-00; Fri, 7 Apr 2000 22:26:10 +0200 Date: Fri, 7 Apr 2000 22:26:10 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Updates from the code-is-law front Message-ID: <20000407222610.A2214@inka.de> References: <4.2.2.20000407154242.00cf26f0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.2.2.20000407154242.00cf26f0@law.harvard.edu>; from wendy@seltzer.com on Fri, Apr 07, 2000 at 04:17:59PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If I create a bot that follows all the necessary links (going in with a > referer from a Yahoo! site to get the cobranded free access), am I > circumventing? >From my (techie's) point of view no. Since a bot that does that is just another sort of "browser" and there is no body that makes binding rules as to how browsers should behave. What if I --horrors-- slurp the source of the framed > webpage and replace the tiny font sizes with larger ones before > printing? You don't even need to do that. Just override the font settings in the browser. Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 16:26:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06553 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:26:56 -0400 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 QAA06548 for ; Fri, 7 Apr 2000 16:26:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 13:27:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A7A@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day Date: Fri, 7 Apr 2000 13:27:07 -0700 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: Marcia Wilbur [mailto:mkwilbur@yahoo.com] ... > > What you are saying makes sense, but again, we are > speaking about intangibles here. > > ...This is not a newspaper at a convenience store > scenario. The data file is not physical. > > In the case of someone shouting break down the door > and the angry mob does such, yes, someone instigated > this physical action. > There is no door to break down here.(well...) > > If someone shouted at some angry mob "Read that > newspaper", "read this article", then, I don't think > there would be any legal liability in that, or would > there... Maybe ... maybe not. Envision this: 2600 posts a message asking everybody reading it to browse to a URL on the MPAA site at -exactly- 4:00p Pacific time on a certain date. The overload of people browsing the MPAA site at 4pm causes their servers to crash. Would that not be comparable to the door being broken by the mob? And all they said was "read this page ..." (Interesting hypothetical ... but getting off the topic of whether links are actions.) -- -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 Apr 7 16:36:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06819 for dvd-discuss-outgoing; Fri, 7 Apr 2000 16:36:30 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06816 for ; Fri, 7 Apr 2000 16:36:28 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12dfUH-00061S-00; Fri, 7 Apr 2000 22:36:17 +0200 Received: from localhost by sites.inka.de with local id 12dfUJ-0001Ot-00; Fri, 7 Apr 2000 22:36:19 +0200 Date: Fri, 7 Apr 2000 22:36:19 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Journalist's error of the day Message-ID: <20000407223619.B2214@inka.de> References: <5A8391CA2D9ED311AFAA080009D982B10B1A7A@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A7A@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 01:27:07PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > If someone shouted at some angry mob "Read that > > newspaper", "read this article", then, I don't think > > there would be any legal liability in that, or would > > there... > > Maybe ... maybe not. Envision this: 2600 posts > a message asking everybody reading it to browse to > a URL on the MPAA site at -exactly- 4:00p Pacific > time on a certain date. The overload of people > browsing the MPAA site at 4pm causes their servers > to crash. Would that not be comparable to the door > being broken by the mob? And all they said was "read > this page ..." Isn't that what slashdot does pretty much every day? ;) Sham From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 17:05:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07754 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:05:37 -0400 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 RAA07751 for ; Fri, 7 Apr 2000 17:05:36 -0400 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 RAA11089 for ; Fri, 7 Apr 2000 17:05:26 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA19450; Fri, 7 Apr 2000 17:05:24 -0400 (EDT) Date: Fri, 7 Apr 2000 17:05:24 -0400 (EDT) Message-Id: <200004072105.RAA19450@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Updates from the code-is-law front In-Reply-To: <4.2.2.20000407154242.00cf26f0@law.harvard.edu> References: <4.2.2.20000407154242.00cf26f0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > Is this an "access control"? > > Edgar Online, a source for the SEC's securities filings, has changed its > display of search results from text links to graphics and imagemaps, > presumably to discourage automated crawlers and bulk downloaders. It also > claims that its "Online HTML version" is "read only" and "cannot be > downloaded and is unsuitable for printing." > See > nav=1> if the link works. Hmmm... it doesn't look that way to me, since there's nothing about it which limits access to a particular set of authorized individuals. It could, however, be considered copy prevention. Contrast this with the Wall Street Journal demanding a password for access, in order to make sure that access is limited to people who have paid an up-front fee. The New York Times is an odd middle case; they don't ask for cash, but they do ask for registration... (NB that there is a section of the DMCA, 1201(i), that says that defeating collection of personal data by an access control mechanism is not, by itself, a violation of 1201(a), so it doesn't look to me like signing in under an alias is by itself a violation of the law, but it's uncomfortably close). > If I create a bot that follows all the necessary links (going in with a > referer from a Yahoo! site to get the cobranded free access), am I > circumventing? What if I --horrors-- slurp the source of the framed > webpage and replace the tiny font sizes with larger ones before > printing? Am I safe because all of this is public record information and > Edgar doesn't have copyright in it? Well, if I'm right about it being copy control and not access control, then you're in the clear, since 1201(b) has no ban on circumvention per se, but just on distribution of the tools. If you wanted to distribute your robot itself, though, that might still be a problem. The lack of an underlying copyright may make a difference, though --- 1201(b) protects "the rights of a copyright holder", and 1201(a) protects "access to a [copyrighted] work". Without a copyright on the material itself, I'm not sure I see how either would apply, except perhaps to a compilation copyright on the material as a whole... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 17:13:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08005 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:13:37 -0400 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 RAA08002 for ; Fri, 7 Apr 2000 17:13:36 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 14:13:58 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A7C@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 7 Apr 2000 14:13:54 -0700 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 > *The reason that broken links exist is that a link is a > reference, not the thing itself.* Your point about broken links applies to the intact links as well. If the link is to a different server then 2600 is referring, not providing. It is that other server that is providing once the user clicks on the link. -- -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 Apr 7 17:30:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08417 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:30:46 -0400 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 RAA08414 for ; Fri, 7 Apr 2000 17:30:45 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 14:31:08 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Updates from the code-is-law front Date: Fri, 7 Apr 2000 14:31:04 -0700 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] ... > (NB that > there is a section of the DMCA, 1201(i), that says that defeating > collection of personal data by an access control mechanism is not, by > itself, a violation of 1201(a), so it doesn't look to me like signing > in under an alias is by itself a violation of the law, but it's > uncomfortably close). > Interesting. This seems to contradict the conclusion supposedly reached at the "Computers, Freedom and Privacy" conference. Wired news article today: http://www.wired.com/news/politics/0,1283,35498,00.html The lead paragraphs: TORONTO -- You say you don't like browser cookies? You're not quite sure if that program you download from the Net is revealing more about you than it should? Well, here's something to make you really nervous: In the United States, it may be illegal to disable software that snoops on yo -- -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 Apr 7 17:36:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09042 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:36:52 -0400 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 RAA09039 for ; Fri, 7 Apr 2000 17:36:51 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA02833 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 16:36:39 -0500 Date: Fri, 7 Apr 2000 16:36:39 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 Motion Message-ID: <20000407163639.A2789@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A7C@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A7C@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Apr 07, 2000 at 02:13:54PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 07, 2000 at 02:13:54PM -0700, Richard Hartman wrote: > > If the link is to a different server then 2600 is > referring, not providing. It is that other server > that is providing once the user clicks on the link. This might be a good point to reference the various "degrees of separation" argument. Basically, the MPAA's argument seems to be: Linking to DeCSS.zip is almost like providing it, because it only takes one mouse click. Linking to a site that links to DeCSS.zip is almost like providing it, because it only takes one mouse click. I'd have to guess that three clicks or four clicks is hardly enough to suit the MPAA. So, you drag out articles like these, that say that on average, *any* internet URL is only 19 clicks away from *any* other place: http://www.canoe.ca/TechNews9909/09_separation.html and maybe the argument can be made that by blocking _any_ links you're blocking a significant portion of the web. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 17:37:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09126 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:37:26 -0400 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 RAA09114 for ; Fri, 7 Apr 2000 17:37:25 -0400 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 RAA14073 for ; Fri, 7 Apr 2000 17:37:14 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA19588; Fri, 7 Apr 2000 17:37:13 -0400 (EDT) Date: Fri, 7 Apr 2000 17:37:13 -0400 (EDT) Message-Id: <200004072137.RAA19588@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Updates from the code-is-law front In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Interesting. This seems to contradict the conclusion > supposedly reached at the "Computers, Freedom and > Privacy" conference. Well, here's 1201(i), though now that I look at it further, it looks like it's worded to bar only *surreptitous* data collection. Which is a screwup on my part, though it's still in conflict with the reports from CFP... (i) Protection of Personally Identifying Information. - (1) Circumvention permitted. - Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure that effectively controls access to a work protected under this title, if - (A) the technological measure, or the work it protects, contains the capability of collecting or disseminating personally identifying information reflecting the online activities of a natural person who seeks to gain access to the work protected; (B) in the normal course of its operation, the technological measure, or the work it protects, collects or disseminates personally identifying information about the person who seeks to gain access to the work protected, without providing conspicuous notice of such collection or dissemination to such person, and without providing such person with the capability to prevent or restrict such collection or dissemination; (C) the act of circumvention has the sole effect of identifying and disabling the capability described in subparagraph (A), and has no other effect on the ability of any person to gain access to any work; and (D) the act of circumvention is carried out solely for the purpose of preventing the collection or dissemination of personally identifying information about a natural person who seeks to gain access to the work protected, and is not in violation of any other law. (2) Inapplicability to certain technological measures. - This subsection does not apply to a technological measure, or a work it protects, that does not collect or disseminate personally identifying information and that is disclosed to a user as not having or using such capability. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 17:48:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09456 for dvd-discuss-outgoing; Fri, 7 Apr 2000 17:48:08 -0400 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 RAA09453 for ; Fri, 7 Apr 2000 17:48:07 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA02867 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 16:47:55 -0500 Date: Fri, 7 Apr 2000 16:47:55 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] article on "Link Law" Message-ID: <20000407164755.A2842@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 stumbled over an article titled "Link Law: The Emerging Law of Internet Hyperlinks", at: http://www.ldrc.com/cyber2.html IANAL, so I can't say how accurate it is, but it does have a section titled "Contributory Infringement Claims Arising from Links and Mirror Sites"... Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 18:23:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10353 for dvd-discuss-outgoing; Fri, 7 Apr 2000 18:23:51 -0400 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 SAA10350 for ; Fri, 7 Apr 2000 18:23:51 -0400 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 SAA21537 for ; Fri, 7 Apr 2000 18:23:40 -0400 (EDT) Message-Id: <4.2.2.20000407181251.00cef200@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 07 Apr 2000 18:23:38 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] Updates from the code-is-law front In-Reply-To: <200004072137.RAA19588@soggy-fibers.ai.mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.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 05:37 PM 4/7/00 -0400, rst@ai.mit.edu wrote: >Richard Hartman writes: > > Interesting. This seems to contradict the conclusion > > supposedly reached at the "Computers, Freedom and > > Privacy" conference. > >Well, here's 1201(i), though now that I look at it further, it looks >like it's worded to bar only *surreptitous* data collection. Which >is a screwup on my part, though it's still in conflict with the >reports from CFP... Yup. This is the provision that says you can only check up on technological measures that don't tell you about their privacy practices. You have to trust them if claim not to collect any information, and you have to let them collect the info if they tell you that's what they're doing. So, you're safe if you circumvent an undisclosed control device that _actually_ collects personally identifying information while claiming not to (and can sue for fraud, to boot), but if your suspicions are wrong, you're in trouble. Sounds like one of the more useless exceptions to me ... --Wendy > (i) Protection of Personally Identifying Information. - > (1) Circumvention permitted. - Notwithstanding the provisions > of subsection (a)(1)(A), it is not a violation of that subsection > for a person to circumvent a technological measure that > effectively controls access to a work protected under this title, > if - > (A) the technological measure, or the work it protects, > contains the capability of collecting or disseminating > personally identifying information reflecting the online > activities of a natural person who seeks to gain access to the > work protected; > > (B) in the normal course of its operation, the technological > measure, or the work it protects, collects or disseminates > personally identifying information about the person who seeks > to gain access to the work protected, without providing > conspicuous notice of such collection or dissemination to such > person, and without providing such person with the capability > to prevent or restrict such collection or dissemination; > > (C) the act of circumvention has the sole effect of > identifying and disabling the capability described in > subparagraph (A), and has no other effect on the ability of > any > person to gain access to any work; and > > (D) the act of circumvention is carried out solely for the > purpose of preventing the collection or dissemination of > personally identifying information about a natural person who > seeks to gain access to the work protected, and is not in > violation of any other law. > > (2) Inapplicability to certain technological measures. - This > subsection does not apply to a technological measure, or a work > it protects, that does not collect or disseminate personally > identifying information and that is disclosed to a user as not > having or using such capability. > >rst Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 18:57:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA11094 for dvd-discuss-outgoing; Fri, 7 Apr 2000 18:57:10 -0400 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 SAA11091 for ; Fri, 7 Apr 2000 18:57:10 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 15:57:32 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A81@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 Motion Date: Fri, 7 Apr 2000 15:57:24 -0700 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 Actually, I'd say that the argument is that "almost" like providing it is still not the same as providing it. The provider is the provider, and that is a technical condition that is not contagious. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Eric Seppanen [mailto:eds@reric.net] > Sent: Friday, April 07, 2000 2:37 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] MPAA v. 2600 Motion > > > On Fri, Apr 07, 2000 at 02:13:54PM -0700, Richard Hartman wrote: > > > > If the link is to a different server then 2600 is > > referring, not providing. It is that other server > > that is providing once the user clicks on the link. > > This might be a good point to reference the various "degrees of > separation" argument. > > Basically, the MPAA's argument seems to be: > Linking to DeCSS.zip is almost like providing it, because it > only takes > one mouse click. > Linking to a site that links to DeCSS.zip is almost like providing it, > because it only takes one mouse click. > > I'd have to guess that three clicks or four clicks is hardly enough to > suit the MPAA. > > So, you drag out articles like these, that say that on average, *any* > internet URL is only 19 clicks away from *any* other place: > http://www.canoe.ca/TechNews9909/09_separation.html and maybe the argument can be made that by blocking _any_ links you're blocking a significant portion of the web. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 19:52:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12124 for dvd-discuss-outgoing; Fri, 7 Apr 2000 19:52:59 -0400 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 TAA12121 for ; Fri, 7 Apr 2000 19:52:57 -0400 Received: (qmail 27749 invoked by uid 60001); 7 Apr 2000 23:52:44 -0000 Message-ID: <20000407235244.27748.qmail@web504.mail.yahoo.com> Received: from [24.28.154.65] by web504.mail.yahoo.com; Fri, 07 Apr 2000 16:52:44 PDT Date: Fri, 7 Apr 2000 16:52:44 -0700 (PDT) From: Bryan Taylor Subject: Re: Linking injunction (was Re: [dvd-discuss] Journalist's error of the day) 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'd go so far as to say that it's precisely the expressive content of the > link that the MPAA wants to enjoin. They want to prevent 2600 from telling > anyone else where to find DeCSS. They fall flat on their face when > claiming that a hyperlink isn't speech, but may yet have half a chance with > the argument that it's speech that incites violation of the law (under MPAA > interpretation of the law) or is in contempt of the injunction against > distribution. (only half a chance, I hope) But does it incite criminal action? Perhaps it incites action that you could get sued for, but even the MPAA hasn't suggested that downloading or using DeCSS is a criminal matter. > The counterargument is just as firmly rooted in free speech arguments -- > that an injunction on the speech is vague (the content of the prohibition > depends on what's on the other side of links to third-party sites); > overbroad (all sorts of advocacy is blocked); an impermissible prior > restraint (prohibiting future speech before the judge reviews the > particular expression at issue);and viewpoint-based (you can link to sites > that advocate the MPAA's point of view, but not anti-DMCA sites that might, > incidentally, link to DeCSS); at the least. The hyperlink still requires > action from the person who sees a page with blue underlines. No one has mentioned that if the hyperlink is expressive, then the 17 USC 1203(b)(1) prohibits the judge from issueing an injunction, since this would be prior restraint of the freedom of the press. __________________________________________________ Do You Yahoo!? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 20:05:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12386 for dvd-discuss-outgoing; Fri, 7 Apr 2000 20:05:02 -0400 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 UAA12383 for ; Fri, 7 Apr 2000 20:05:01 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA28986; Fri, 7 Apr 2000 20:04:50 -0400 Date: Fri, 7 Apr 2000 20:04:50 -0400 From: Jim Bauer Message-Id: <200004080004.UAA28986@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Updates from the code-is-law front Newsgroups: local.dvd-discuss In-Reply-To: <4.2.2.20000407154242.00cf26f0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >Is this an "access control"? > >Edgar Online, a source for the SEC's securities filings, has changed its >display of search results from text links to graphics and imagemaps, >presumably to discourage automated crawlers and bulk downloaders. It also >claims that its "Online HTML version" is "read only" and "cannot be >downloaded and is unsuitable for printing." >See >nav=1> if the link works. What makes them think it can't be downloaded or printed? If I can view it, I have already downloaded it. It is 99% (made up number) pre-formated plain text. If this can't be printed, I have a bridge to sell you. Maybe they meant no one would want to print it as it is a waste of trees. That would fit "unsuitable". -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 7 20:10:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12517 for dvd-discuss-outgoing; Fri, 7 Apr 2000 20:10:55 -0400 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 UAA12514 for ; Fri, 7 Apr 2000 20:10:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Apr 2000 17:11:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1A83@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Updates from the code-is-law front Date: Fri, 7 Apr 2000 17:11:05 -0700 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: Jim Bauer [mailto:jfbauer@home.com] > > Wendy Seltzer wrote: >> >It also >> >claims that its "Online HTML version" is "read only" and "cannot be >> >downloaded and is unsuitable for printing." > >What makes them think it can't be downloaded or printed? If I can view it, >I have already downloaded it. It is 99% (made up number) pre-formated plain >text. If this can't be printed, I have a bridge to sell you. Maybe they >meant no one would want to print it as it is a waste of trees. That would >fit "unsuitable". Perhaps this was their attempt at stating a copyright policy, and the proper language would be "may not be printed"? -- -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 Apr 7 21:28:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14831 for dvd-discuss-outgoing; Fri, 7 Apr 2000 21:28:59 -0400 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 VAA14828 for ; Fri, 7 Apr 2000 21:28:57 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id SAA23314 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Apr 2000 18:24:10 -0700 Date: Fri, 7 Apr 2000 18:24:09 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: Linking injunction (was Re: [dvd-discuss] Journalist's error of the day) Message-ID: <20000407182409.M23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000407235244.27748.qmail@web504.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000407235244.27748.qmail@web504.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Apr 07, 2000 at 04:52:44PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [This is very speculative, because, as I said earlier, I don't know much about injunctions, nor about law pertaining to advocacy or aiding and abetting things.] Bryan Taylor writes: > --- Wendy Seltzer wrote: > > > I'd go so far as to say that it's precisely the expressive content of the > > link that the MPAA wants to enjoin. They want to prevent 2600 from telling > > anyone else where to find DeCSS. They fall flat on their face when > > claiming that a hyperlink isn't speech, but may yet have half a chance with > > the argument that it's speech that incites violation of the law (under MPAA > > interpretation of the law) or is in contempt of the injunction against > > distribution. (only half a chance, I hope) > > But does it incite criminal action? Perhaps it incites action that you could > get sued for, but even the MPAA hasn't suggested that downloading or using > DeCSS is a criminal matter. Hmmm, interesting. (They _have_ suggested that using DeCSS will be illegal: but not, as far as I can see, downloading it, only providing it or using it.) There are lots of big questions about the scope of injunctions, but I guess the big question is whether advocating (in, hypothetically, a "clear and present danger" sort of way, that might not be considered protected even under strict scrutiny) or abetting something which would be illegal _if done by the advocator or abettor_ but not necessarily if done by the person or people who end up doing it illegal? I can think of some fascinating questions of jurisdiction in hypothetical cases, but I don't know whether those speculations have much to do with this issue. Let's say it's illegal for me to publish DeCSS. Is it illegal for me (absent an injunction) to ask a particular person to publish DeCSS? How about specific advocacy ("people who read this should mirror DeCSS") or general advocacy ("mirroring DeCSS is worthwhile, and people who do it are worth of praise for their support of the freedom of speech in the face of significant risk")? Most of the cases I've seen about this had first of all to do with perceived risks of serious alleged harms (revolutions and riots), and second of all to do with advocacy of something which is illegal for _everyone_. Publishing DeCSS is obviously not illegal for everyone, because the DMCA does not apply extraterritorially -- and there are non-WIPO countries with Internet access, and presumably there are also countries with Internet access which are not parties to treaties on international legal protection of trade secrets. So there are people with Internet access somewhere in the world, I would argue, for whom publication of DeCSS would not be prohibited by _any_ local law or treaty. (And there are _lots_ of people -- all over Europe, for instance -- for whom publication of DeCSS may be legally questionable but who stand a very good chance of being able to defend that activity in court.) So, what if somebody in Germany wanted to published DeCSS for the benefit of someone in Japan, and someone (the publishers of _2600_, say) wanted to help the people in Germany? One way they could do this would be to tell the people in Japan that the people in Germany were publishing DeCSS at a particular address (which is a fact, although the communication of that fact has a particular intent, which a court might not endorse). When the people in Japan receive assistance from a New York corporation in obtaining computer software which is (arguendo) legal in Japan and Germany both, they are not breaking any U.S. law that I know of. Now, _2600_ isn't only linking to international mirrors, as far as I know. But, first of all, their right to link to things other than actual copies of DeCSS should be obvious (because they should not be responsible for third-party speech whose content they do not control, and which contains much obviously protected material which _2600_ has a clear and presumably protected interest in publicizing). And, second of all, _2600_ believes that DeCSS is legal (for a lot of reasons), so one might argue that, if this belief is maintained in good faith, it's not automatically illegal for them to help even people in the United States distribute it (???) -- since, absent an injunction which specifically tells you not to, you shouldn't get in trouble for abetting some activity you didn't know or have reason to know was illegal, right? (That second argument is an argument for why linking doesn't violate the law or the existing injunction, not why a subsequent injunction shouldn't be granted.) And, third of all, maybe _2600_ should only link to mirror sites which certify that they are not subject to the jurisdiction of the DMCA or another law which might be construed to forbid the publication of DeCSS. (Actually, just not being in the United States might be good enough -- but I'd go for "I'm not in the United States and I have reason to believe that publishing DeCSS is legal for me here where I am".) If they did that, then we'd have a _really_ interesting case, because _2600_ would be at most abetting something which is allegedly illegal for them to do themselves, but which is apparently legal for the people actually doing it. What happens then? > > The counterargument is just as firmly rooted in free speech arguments -- > > that an injunction on the speech is vague (the content of the prohibition > > depends on what's on the other side of links to third-party sites); > > overbroad (all sorts of advocacy is blocked); an impermissible prior > > restraint (prohibiting future speech before the judge reviews the > > particular expression at issue);and viewpoint-based (you can link to sites > > that advocate the MPAA's point of view, but not anti-DMCA sites that might, > > incidentally, link to DeCSS); at the least. The hyperlink still requires > > action from the person who sees a page with blue underlines. > > No one has mentioned that if the hyperlink is expressive, then the 17 USC > 1203(b)(1) prohibits the judge from issueing an injunction, since this would be > prior restraint of the freedom of the press. That's not intuitive to me, but I could see that it might be relevant. -- 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 Sat Apr 8 11:00:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29626 for dvd-discuss-outgoing; Sat, 8 Apr 2000 11:00:33 -0400 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 LAA29623 for ; Sat, 8 Apr 2000 11:00:32 -0400 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 LAA10463 for ; Sat, 8 Apr 2000 11:00:24 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA21984; Sat, 8 Apr 2000 11:00:23 -0400 (EDT) Date: Sat, 8 Apr 2000 11:00:23 -0400 (EDT) Message-Id: <200004081500.LAA21984@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Updates from the code-is-law front In-Reply-To: <4.2.2.20000407181251.00cef200@law.harvard.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> <200004072137.RAA19588@soggy-fibers.ai.mit.edu> <4.2.2.20000407181251.00cef200@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > Yup. This is the provision that says you can only check up on > technological measures that don't tell you about their privacy > practices. You have to trust them if claim not to collect any information, > and you have to let them collect the info if they tell you that's what > they're doing. > > So, you're safe if you circumvent an undisclosed control device that > _actually_ collects personally identifying information while claiming not > to (and can sue for fraud, to boot), but if your suspicions are wrong, > you're in trouble. Sounds like one of the more useless exceptions to me ... Hmmm... it actually isn't particularly hard technically to catch them in the act if they're lying, at least on the Internet --- just run tcpdump, and look for suspicious outgoing traffic. That's sufficient to catch a lot of the privacy violators that have been in the news lately, as in the recent RealPlayer fracas, and the Comet cursor business. This does, of course, require a level of vigilance and technical skill that is *way* in excess of what you can reasonably expect ordinary people to have, but at least the tools are commonly available and their distribution is not impeded by the law. And once you've found them with their hands in the cookie jar, the exception does apply. If there's decent crypto on the traffic in question, then 1201(i) is a lot harder to apply (you'd have to do reverse engineering to determine the contents of the traffic), and in the case of tamperproof devices, it genuinely is useless --- but still, there are real cases where I can see it doing some good. So, it's not *nearly* as useless as, say, the library exceptions in 1201(d). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 8 14:58:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00881 for dvd-discuss-outgoing; Sat, 8 Apr 2000 14:58:41 -0400 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 OAA00878 for ; Sat, 8 Apr 2000 14:58:40 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id LAA23957 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Apr 2000 11:53:51 -0700 Date: Sat, 8 Apr 2000 11:53:50 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Updates from the code-is-law front Message-ID: <20000408115350.W23385@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1A7F@mail2.onetouch.com> <200004072137.RAA19588@soggy-fibers.ai.mit.edu> <4.2.2.20000407181251.00cef200@law.harvard.edu> <200004081500.LAA21984@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004081500.LAA21984@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Apr 08, 2000 at 11:00:23AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > Hmmm... it actually isn't particularly hard technically to catch them > in the act if they're lying, at least on the Internet --- just run > tcpdump, and look for suspicious outgoing traffic. That's sufficient > to catch a lot of the privacy violators that have been in the news > lately, as in the recent RealPlayer fracas, and the Comet cursor > business. This does, of course, require a level of vigilance and > technical skill that is *way* in excess of what you can reasonably > expect ordinary people to have, but at least the tools are commonly > available and their distribution is not impeded by the law. And once > you've found them with their hands in the cookie jar, the exception > does apply. > > If there's decent crypto on the traffic in question, then 1201(i) is a > lot harder to apply (you'd have to do reverse engineering to determine > the contents of the traffic), and in the case of tamperproof devices, > it genuinely is useless --- but still, there are real cases where I can > see it doing some good. So, it's not *nearly* as useless as, say, the > library exceptions in 1201(d). You are right to think that 1201(i) might actually be useful, slightly, for a little while. But not much or for very long, I expect. I think there will be decent crypto there after one more high-profile case that humiliates some vendor, or gets some vendor in worse trouble. It's not as though these things don't keep happening, and it's not as though a lot of people don't now have firewalls with Ethernet sniffers. Or maybe the crypto is actually already there, by and large. I'm reminded of an occasional conversation in the context of some of T. C. May's ideas: "So, if secret encrypted on-line black markets to evade taxes are so great, _why aren't people using them_?" "Well..." -- 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 Sun Apr 9 00:34:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA10872 for dvd-discuss-outgoing; Sun, 9 Apr 2000 00:34:32 -0400 Received: from orange.fenimore.org (dial217.cybermesa.com [209.12.75.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA10860 for ; Sun, 9 Apr 2000 00:34:24 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id WAA02451 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Apr 2000 22:38:11 -0600 Date: Sat, 8 Apr 2000 22:38:09 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Berne Convention Message-ID: <20000408223808.A2372@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 Article 17 of the Berne Convention says that a signatory Government may not use the treaty as authority to "permit" regulation of "... the circulation, presentation, or exhibition of any work ..." 1201 was enacted to conform the United States to the WIPO Copyright Treaty produced by, "DIPLOMATIC CONFERENCE ON CERTAIN COPYRIGHT AND NEIGHBORING RIGHTS QUESTIONS." Article 1 of the WIPO treaty says, "This Treaty shall not have any connection with treaties other than the Berne Convention, ..." The Berne Convention is a bit long, so I haven't read the whole thing yet, but this looks useful. Not only does the Congressional record contradict the MPAA's reading of 1201, but the treaties don't seem to be amenable either. Article 17 [Possibility of Control of Circulation, Presentation and Exhibition of Works] The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 9 12:23:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20778 for dvd-discuss-outgoing; Sun, 9 Apr 2000 12:23:20 -0400 Received: from cyber.law.harvard.edu (cyber.law.harvard.edu [140.247.216.239]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20775 for ; Sun, 9 Apr 2000 12:23:19 -0400 From: wendy@seltzer.com Message-Id: <200004091623.MAA20775@eon.law.harvard.edu> Received: from cyber.law.harvard.edu ([140.247.216.239]) by cyber.law.harvard.edu with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id 2PG0H5K8; Sun, 9 Apr 2000 12:23:31 -0400 Subject: Re: [dvd-discuss] Updates from the code-is-law front To: dvd-discuss@eon.law.harvard.edu Content-type: text/plain; charset="iso-8859-1" Mime-version: 1.0 Date: Sun, 9 Apr 2000 12:23 -0400 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA20776 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 11:53 AM 4/8/00 -0700, schoen@loyalty.org wrote: >Robert S. Thau writes: > >> Hmmm... it actually isn't particularly hard technically to catch them >> in the act if they're lying, at least on the Internet --- just run >> tcpdump, and look for suspicious outgoing traffic. That's sufficient >> to catch a lot of the privacy violators that have been in the news >> lately, as in the recent RealPlayer fracas, and the Comet cursor >> business. This does, of course, require a level of vigilance and >> technical skill that is *way* in excess of what you can reasonably >> expect ordinary people to have, but at least the tools are commonly >> available and their distribution is not impeded by the law. And once >> you've found them with their hands in the cookie jar, the exception >> does apply. I was wrongly assuming that the only way to detect cheaters was by circumvention -- in which case you'd be at legal risk any time you tested a product's privacy claims. Thanks for the correction. >> If there's decent crypto on the traffic in question, then 1201(i) is a >> lot harder to apply (you'd have to do reverse engineering to determine >> the contents of the traffic), and in the case of tamperproof devices, >> it genuinely is useless --- but still, there are real cases where I can >> see it doing some good. So, it's not *nearly* as useless as, say, the >> library exceptions in 1201(d). > >You are right to think that 1201(i) might actually be useful, slightly, >for a little while. But not much or for very long, I expect. > >I think there will be decent crypto there after one more high-profile >case that humiliates some vendor, or gets some vendor in worse trouble. >It's not as though these things don't keep happening, and it's not as >though a lot of people don't now have firewalls with Ethernet sniffers. I'd imagine that between crypto and legal -- obfuscated clickwraps to the effect of "by using this work you agree to its collection of any and all personally identifying data -- we'll have to wait for regulations about privacy disclosure to give the exception force >Or maybe the crypto is actually already there, by and large. I'm reminded >of an occasional conversation in the context of some of T. C. May's ideas: > >"So, if secret encrypted on-line black markets to evade taxes are so great, >_why aren't people using them_?" > >"Well..." > --Wendy wendy@seltzer.com | wseltzer@law.harvard.edu From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 02:39:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05264 for dvd-discuss-outgoing; Mon, 10 Apr 2000 02:39:28 -0400 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 CAA05261 for ; Mon, 10 Apr 2000 02:39:26 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id JAA03931 for ; Mon, 10 Apr 2000 09:39:24 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 10 Apr 2000 09:39:23 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD by OS (tech 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 Tue, 28 Mar 2000, sam th wrote: >I realize this. This is what makes DeCSS so hard to track. If you want >to look through each of those 15000 documents, be my guest. It would not >be easy to find all the copies just out of the lists I mentioned Since compressed data is rarely altered while mirrored, file sizes and MIME types tell it all. This could help in tracking the relevant historical data from within a search bot's database, should some bigger portal cooperate on the issue. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 03:16:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA08112 for dvd-discuss-outgoing; Mon, 10 Apr 2000 03:16:39 -0400 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 DAA08088 for ; Mon, 10 Apr 2000 03:16:38 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id KAA11476 for ; Mon, 10 Apr 2000 10:16:36 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 10 Apr 2000 10:16:35 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD hardware issues In-Reply-To: <200003291900.OAA15687@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 Wed, 29 Mar 2000, Robert S. Thau wrote: >Still, it's >interesting to note how many of these features seem to be designed to >make it difficult for someone to make an unauthorized *player*, which >is a very different thing from preventing unauthorized access to a >particular *movie*. This is quite understandable and probably falls within intent behind WIPO and derivative (e.g. DMCA) efforts - the problem is, if you cannot control the player, you have no trusted codebase. If the codebase surrounding playback (which must self-evidently decrypt) isn't trusted, there is a possibility of information leak. Hence, you must control the player at least in part. The paranoia enters when people start talking about security even inside the player so that buses can't be tapped... >So, if we can argue >that CSS is actually a manufacturer control measure, and not an >access- or copying-control measure, stuff like this *may* work in our >favor in the legal arena. The problem is that trusted equipment and the ensuing leash on manufacturers are an essential part of any working solution to one of the prime problems which DMCA and WIPO-like treaties are meant to address - piracy of the rip-recompress-net-distribute kind. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 03:36:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA09168 for dvd-discuss-outgoing; Mon, 10 Apr 2000 03:36:09 -0400 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 DAA09165 for ; Mon, 10 Apr 2000 03:36:07 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id KAA15093 for ; Mon, 10 Apr 2000 10:36:05 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 10 Apr 2000 10:36:04 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-closed, EFF, and other issues In-Reply-To: <200003292322.SAA17546@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 Wed, 29 Mar 2000, Robert S. Thau wrote: > > Reverse Engineering Analysis: A memo outiling the legal cases dealing with > > reverse engineering and how they apply top this case. > >This is actually a point which confuses me a bit --- the code was >originally published in Norway, based on reverse engineering which was >performed (according to Johansen) in Germany. We've discussed some >relevant case law, but it's all American... This should not be simple at all since the creation of DeCSS isn't an issue in the USA cases. The MPAA members sue over trafficking, not creation. Instead, reverse engineering caselaw is relevant because it supports the other arguments being crafted (like unconstitutionality based on overbroadness, on the grounds that DeCSS as a product of legal RE *and* seen in the context of open source software development constitutes a use which cannot be forbidden under DMCA although it is). I think the question needs to be answered from this rather different point of view, which might make the search somewhat more complicated. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 03:52:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA09727 for dvd-discuss-outgoing; Mon, 10 Apr 2000 03:52:29 -0400 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 DAA09724 for ; Mon, 10 Apr 2000 03:52:28 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id BAA01014 for ; Mon, 10 Apr 2000 01:52:27 -0600 Date: Mon, 10 Apr 2000 01:52:27 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD by OS (tech 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 This might be an issue for the "Spartacists" out there who mirror the perl script DeCSS as a smokescreen. Perhaps the FAQ could point out this little issue so some of the smarter sparticists out there could make the fake DeCSS look a little bit more real...perhaps including a target checksum from a real DeCSS binary and/or zipfile. On Mon, 10 Apr 2000, Sampo A Syreeni wrote: > On Tue, 28 Mar 2000, sam th wrote: > > >I realize this. This is what makes DeCSS so hard to track. If you want > >to look through each of those 15000 documents, be my guest. It would not > >be easy to find all the copies just out of the lists I mentioned > > Since compressed data is rarely altered while mirrored, file sizes and MIME > types tell it all. This could help in tracking the relevant historical data > from within a search bot's database, should some bigger portal cooperate on > the issue. > > Sampo Syreeni , aka decoy, student/math/Helsinki university > EMACS == Eight Megabytes And Constantly Swapping Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 04:01:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA10340 for dvd-discuss-outgoing; Mon, 10 Apr 2000 04:01:46 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA10337 for ; Mon, 10 Apr 2000 04:01:45 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12eZ8i-0000if-00; Mon, 10 Apr 2000 10:01:44 +0200 Received: from localhost by sites.inka.de with local id 12eZ8i-0005EH-00; Mon, 10 Apr 2000 10:01:44 +0200 Date: Mon, 10 Apr 2000 10:01:44 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD by OS (tech issues #3) Message-ID: <20000410100144.A19675@inka.de> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from galt@inconnu.isu.edu on Mon, Apr 10, 2000 at 01:52:27AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 10, 2000 at 01:52:27AM -0600, John Galt wrote: > > This might be an issue for the "Spartacists" out there who mirror the perl > script DeCSS as a smokescreen. Perhaps the FAQ could point out this > little issue so some of the smarter sparticists out there could make the > fake DeCSS look a little bit more real...perhaps including a target > checksum from a real DeCSS binary and/or zipfile. The "real" mirrors could also be altered slightly to produce varying file sizes and checksums, say by including a small random text file in the ZIP. Sham From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 14:49:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14594 for dvd-discuss-outgoing; Mon, 10 Apr 2000 14:49:07 -0400 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 OAA14591 for ; Mon, 10 Apr 2000 14:49:05 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA15201 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Apr 2000 13:49:00 -0500 Date: Mon, 10 Apr 2000 13:49:00 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ news Message-ID: <20000410134900.A15169@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 The development version of the FAQ is available at: http://www.reric.net/dvdlaw/devel-faq.html The released version remains at: http://www.cssfaq.org The reason for making the development version available is so that everyone here can see it and comment on it even when it's in an ugly state (pieces might be missing, formatting may be goofed up...). In the future I will mark all changes (from the last released version) in red, so it's easier to see what's new. These marks will be removed from the release versions. The plan right now is to release a new version next Monday, April 17. Eric From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 10 14:58:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15109 for dvd-discuss-outgoing; Mon, 10 Apr 2000 14:58:35 -0400 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 OAA15106 for ; Mon, 10 Apr 2000 14:58:33 -0400 Received: (qmail 23854 invoked by uid 502); 10 Apr 2000 18:00:43 -0000 Date: Mon, 10 Apr 2000 14:00:43 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ news Message-ID: <20000410140043.V3375@linuxpower.org> References: <20000410134900.A15169@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000410134900.A15169@thud.reric.net>; from Eric Seppanen on Mon, Apr 10, 2000 at 01:49:00PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 10, 2000 at 01:49:00PM -0500, Eric Seppanen wrote: > > The plan right now is to release a new version next Monday, April 17. I just wanted to mention here that the April 17th cut will be the first "official" (i.e., non-development) version of the FAQ. At that point, there will be two tracks of the FAQ - the "moving target" development cut and the official production cut. 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 Mon Apr 10 20:30:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04256 for dvd-discuss-outgoing; Mon, 10 Apr 2000 20:30:51 -0400 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 UAA04252 for ; Mon, 10 Apr 2000 20:30:50 -0400 Received: from [38.32.77.152] (helo=ip152.bedford7.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12eoZr-0001U3-00; Mon, 10 Apr 2000 20:30:47 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ news Date: Mon, 10 Apr 2000 20:25:26 -0400 Message-ID: References: <20000410134900.A15169@thud.reric.net> In-Reply-To: <20000410134900.A15169@thud.reric.net> X-Mailer: Forte Agent 1.8/32.548 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 UAA04253 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu just a tweak-- 1.5.12) What are the European Directives? The European Directives are the European Union's internal attempt to conform to the WIPO copyright agreement. (see Question 1.5.3 ) The full text PDF of the European Directives on "Copyright and Related Rights in the Information Society" is available here: http://europa.eu.int/comm/internal_market/en/intprop/intprop/1100.htm and an amended proposal is available from here: http://europa.eu.int/comm/internal_market/en/intprop/intprop/copy2.htm#2 The original 1995 Green paper ( http://europa.eu.int/en/record/other/istocen.htm ) cited the following documents as rationales for international copyright reform: US (Intellectual Property and the National Information Infrastructure, US Administration White Paper, Department of Commerce, 5 September1995) http://www.iitf.nist.gov/documents/committee/infopol/ipnii.html Japan (Predicted Problems and Possible Solutions for Administering Intellectual Property Rights in a Multimedia Society Institute for Intellectual Property, Multimedia Comittee, IIP Tokyo, June 1995) Canada (Copyright and the Information Highway, Information Highway Advisory Council, Final Report of the Copyright Sub-Committee, Ottawa, March 1995) http://strategis.ic.gc.ca/SSG/ih01092e.html Australia (Highways to Change: Copyright in the new Communications Environment, Report of the Copyright Convergence Group, August 1994) Other links: http://europa.eu.int/index-en.htm http://www2.echo.lu/legal/en/labhome.html http://europa.eu.int/comm/internal_market/en/intprop/index.htm __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 11 12:04:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07453 for dvd-discuss-outgoing; Tue, 11 Apr 2000 12:04:10 -0400 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 MAA07450 for ; Tue, 11 Apr 2000 12:04:08 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id TAA04496 for ; Tue, 11 Apr 2000 19:04:05 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Tue, 11 Apr 2000 19:04:05 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" et al In-Reply-To: <20000404123235.95358.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, 4 Apr 2000, Claus Adamsen wrote: >Well, there is. The Eu Council Directive 91/250/EEC Articles 5 and 6 >specifically permits reverse engineering and decompilation for a few limited >purposes (notably, to achieve interoperability of an independently created >computer program), and according to Article 9(1) of the directive: But remember, EU isn't a federation like USA. Directives do *not* have the power of law. They do carry a contractual obligation (established at the time of joining the Union) to change each member state's legistlation to conform. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 11 12:09:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08898 for dvd-discuss-outgoing; Tue, 11 Apr 2000 12:09:51 -0400 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 MAA08859 for ; Tue, 11 Apr 2000 12:09:49 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id TAA05185 for ; Tue, 11 Apr 2000 19:09:48 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Tue, 11 Apr 2000 19:09:47 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FAQ Policy Question In-Reply-To: <20000404112719.A22137@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, 4 Apr 2000, Eric Seppanen wrote: >1. Should anyone be able to see which things changed in the latest update? > >My answer: Yes. I don't know what the best way to do this is, however. Post the incomplete faq on the website along with the current official version and use html insert/delete tags to mark changes. >We're all nitpicky geeks and the volume generated will be huge. Agreed. Do not post changes to the list. The 650+ messages I started sorting out a couple of days ago drove me to the edge as it stands. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 11 18:03:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29600 for dvd-discuss-outgoing; Tue, 11 Apr 2000 18:03:47 -0400 Received: from dial253.roadrunner.com (dial253.cybermesa.com [209.12.75.253]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA29567 for ; Tue, 11 Apr 2000 18:03:44 -0400 Received: (from paul@localhost) by dial253.roadrunner.com (8.8.7/8.8.7) id QAA03296 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Apr 2000 16:07:21 -0600 Date: Tue, 11 Apr 2000 16:07:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Napster, DMCA and RIAA lawsuit developments Message-ID: <20000411160719.A3275@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 Here is what looks to me like a new angle on Napster's defense in the RIAA lawsuit. Lawyers for music upstart Napster are now trying to use that same law to derail a multimillion-dollar copyright lawsuit in San Francisco, the outcome of which could weaken the hard-fought act. A decision is expected as early as this week on a defense motion to throw out the suit under the DMCA's so-called safe harbor provisions, despite claims that the service facilitates rampant music piracy by allowing music enthusiasts to swap digital recordings, called MP3s. Where "law" means "DMCA." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 12 10:31:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA23863 for dvd-discuss-outgoing; Wed, 12 Apr 2000 10:31:47 -0400 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 KAA23860 for ; Wed, 12 Apr 2000 10:31:45 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id RAA26038 for ; Wed, 12 Apr 2000 17:31:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 12 Apr 2000 17:31:42 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] AGC copy protection in VCRs In-Reply-To: <20000406092450.A558@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, 6 Apr 2000, Paul Fenimore wrote: >> Macrovision (is this the same as AGC?) exploits as feature in modern VCRs > >The dvdfaq says that AGC is a _part_ of Macrovision, the other part >being a rapid modulation of the colorburst signal ("colorstripe"). AGC is short for Automatic Gain Control. It is the simplistic machinery for normalizing a VCR recorded signal based on the strength of the sync burst (or any other suitable reference level in the signal itself, including average power etc.). Macrovision disturbs these circuits by inserting constantly changing, oversized bursts in the invisible parts of the signal. Televisions should have little need for AGC of this kind, so in theory only VCRs should be affected. In practice, nothing is so simple. Is there a reason we are talking about Macrovision? Something to do with tying? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 12 11:00:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26583 for dvd-discuss-outgoing; Wed, 12 Apr 2000 11:00:46 -0400 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 LAA26580 for ; Wed, 12 Apr 2000 11:00:45 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id SAA00598 for ; Wed, 12 Apr 2000 18:00:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 12 Apr 2000 18:00:42 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Journalist's error of the day In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1A6C@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 On Fri, 7 Apr 2000, Richard Hartman wrote: >Basically, a link is nothing more than a citation that certain >programs can automatically retrieve for you. But the pointer >to the thing is not the thing itself. I can say "this exists >over -there-" and although I am providing information on that >thing, I am not providing the thing itself. The people over >-there- are providing it, and you have to talk with them to >get it. An age old analogy is the one with the public phone network - the things are at certain addresses and you have to get them. Links are just person x telling person y which number to call to find person y. Perhaps with the current generation of cell phone savvy people we can go a bit further - some phones are able to send a short message containing data from an entry in the phone's phonebook. Most of these phones can call a number appearing in a SMS message automatically, by pressing a button. The analogy with linking is astounding with this sort of automatics. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 12 16:04:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27925 for dvd-discuss-outgoing; Wed, 12 Apr 2000 16:04:20 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27890 for ; Wed, 12 Apr 2000 16:04:18 -0400 Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id QAA13896 for ; Wed, 12 Apr 2000 16:04:14 -0400 Message-ID: <38F4D5A3.5F9835E6@mindspring.com> Date: Wed, 12 Apr 2000 15:59:31 -0400 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] AGC copy protection in VCRs 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 Sampo A Syreeni wrote: > > Is there a reason we are talking about Macrovision? Something to do with > tying? > Goes to why the MPAA are right-bastards and shouldn't be trusted, your honor. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 13 03:41:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA25278 for dvd-discuss-outgoing; Thu, 13 Apr 2000 03:41:52 -0400 Received: from hotmail.com (f159.law3.hotmail.com [209.185.241.159]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA25275 for ; Thu, 13 Apr 2000 03:41:51 -0400 Received: (qmail 38052 invoked by uid 0); 13 Apr 2000 07:41:20 -0000 Message-ID: <20000413074120.38051.qmail@hotmail.com> Received: from 192.38.120.166 by www.hotmail.com with HTTP; Thu, 13 Apr 2000 00:41:19 PDT X-Originating-IP: [192.38.120.166] From: "Claus Adamsen" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DVDCCA "faq" et al Date: Thu, 13 Apr 2000 09:41:19 CEST 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 On Tue, 11 Apr 2000, Sampo A Syreeni wrote: >On Tue, 4 Apr 2000, Claus Adamsen wrote: > > >Well, there is. The Eu Council Directive 91/250/EEC Articles 5 and 6 > >specifically permits reverse engineering and decompilation for a few >limited > >purposes (notably, to achieve interoperability of an independently >created > >computer program), and according to Article 9(1) of the directive: > >But remember, EU isn't a federation like USA. Directives do *not* have the >power of law. They do carry a contractual obligation (established at the >time of joining the Union) to change each member state's legistlation to >conform. Directives are addressed to the member states, which are legally obligated to implement these through national legislation. If a member state has not implemented a directive at all or implemented it incorrectly, the courts of this member state are under an obligation to interpret national law as to conform to the directive to the furthest possible extent. The important thing here is that the "software directive" 91/250 is in fact implemented in all member states, and though Norway is not a member of the EU, the Norwegian copyright law also conforms to the directive (probably as a result of Norway's membership in the European Economic Area). Claus Adamsen claus_adamsen@hotmail.com ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 13 15:14:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06758 for dvd-discuss-outgoing; Thu, 13 Apr 2000 15:14:46 -0400 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 PAA06755 for ; Thu, 13 Apr 2000 15:14:41 -0400 Received: (qmail 22426 invoked by uid 502); 13 Apr 2000 19:16:13 -0000 Date: Thu, 13 Apr 2000 15:16:13 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Back from break Message-ID: <20000413151613.F17245@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 Hey, folks. I just wanted to let ya'll know that I'm back from my break. I needed a couple of weeks to reset my perspective on things. I've noticed the traffic on this list has virtually died lately. Is everyone just busy right now or what? -- 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 Apr 13 15:21:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06933 for dvd-discuss-outgoing; Thu, 13 Apr 2000 15:21:42 -0400 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 PAA06930 for ; Thu, 13 Apr 2000 15:21:40 -0400 Received: from cdpage.com (jdsl21.dnvr.uswest.net [206.196.156.21]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id MAA20175 for ; Thu, 13 Apr 2000 12:21:47 -0700 (PDT) Message-ID: <38F61DCD.96DA3BF5@cdpage.com> Date: Thu, 13 Apr 2000 13:19:41 -0600 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] Back from break References: <20000413151613.F17245@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: > Hey, folks. I just wanted to let ya'll know that I'm back from my > break. I needed a couple of weeks to reset my perspective on things. > > I've noticed the traffic on this list has virtually died lately. Is > everyone just busy right now or what? > > -- > 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 Can you say T-A-X-E-S? -- 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 Thu Apr 13 15:24:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07186 for dvd-discuss-outgoing; Thu, 13 Apr 2000 15:24:48 -0400 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 PAA07182 for ; Thu, 13 Apr 2000 15:24:47 -0400 Received: (qmail 22711 invoked by uid 502); 13 Apr 2000 19:26:38 -0000 Date: Thu, 13 Apr 2000 15:26:38 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Back from break Message-ID: <20000413152638.K17245@linuxpower.org> References: <20000413151613.F17245@linuxpower.org> <38F61DCD.96DA3BF5@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <38F61DCD.96DA3BF5@cdpage.com>; from Dana Parker on Thu, Apr 13, 2000 at 01:19:41PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 13, 2000 at 01:19:41PM -0600, Dana Parker wrote: > greslin@linuxpower.org wrote: > > > Hey, folks. I just wanted to let ya'll know that I'm back from my > > break. I needed a couple of weeks to reset my perspective on things. > > > > I've noticed the traffic on this list has virtually died lately. Is > > everyone just busy right now or what? > > Can you say T-A-X-E-S? Ah, yes.. nearly forgot about that. Thanks for reminding me. I wonder where my W2's are? :) -- 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 Fri Apr 14 09:21:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28419 for dvd-discuss-outgoing; Fri, 14 Apr 2000 09:21:45 -0400 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 JAA28416 for ; Fri, 14 Apr 2000 09:21:43 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with SMTP id JAA04562 for ; Fri, 14 Apr 2000 09:21:41 -0400 (EDT) Message-Id: <4.1.20000414091438.00a12100@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Fri, 14 Apr 2000 09:23:26 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Back from break In-Reply-To: <20000413152638.K17245@linuxpower.org> References: <38F61DCD.96DA3BF5@cdpage.com> <20000413151613.F17245@linuxpower.org> <38F61DCD.96DA3BF5@cdpage.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've been completely swamped for the last week (and likely for the next one too). I'll try at least to add some comments for the FAQ. --Wendy At 03:26 PM 4/13/00 -0400, you wrote: >On Thu, Apr 13, 2000 at 01:19:41PM -0600, Dana Parker wrote: >> greslin@linuxpower.org wrote: >> >> > Hey, folks. I just wanted to let ya'll know that I'm back from my >> > break. I needed a couple of weeks to reset my perspective on things. >> > >> > I've noticed the traffic on this list has virtually died lately. Is >> > everyone just busy right now or what? >> >> Can you say T-A-X-E-S? > >Ah, yes.. nearly forgot about that. Thanks for reminding me. I >wonder where my W2's are? :) > > >-- >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 > --- Wendy Seltzer wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 15 15:57:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18626 for dvd-discuss-outgoing; Sat, 15 Apr 2000 15:57:23 -0400 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 PAA18623 for ; Sat, 15 Apr 2000 15:57:22 -0400 Received: from bugbug (max01-24.suba.com [206.69.121.216]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id OAA13803 for ; Sat, 15 Apr 2000 14:57:18 -0500 (CDT) From: "sparky" To: Subject: [dvd-discuss] interoperability (RE redux) Date: Sat, 15 Apr 2000 14:56:35 -0500 Message-ID: <000001bfa714$b420dba0$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 In-Reply-To: <4.1.20000414091438.00a12100@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 The RE angle has been hashed out about 5 billion times, but in working on issues in the FAQ, I've found something I don't remember being posted: the legal definition of interoperability: 1201(f)(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." There has been a lot of wrangling over the RE exemption not applying to DeCSS because there did not seem to be a way to link DVDs as a program to other programs - in other words, the "interoperability" was the sticking point. Maybe we weren't thinking like lawyers yet, because I think there was a general assumption that we knew what "interoperability" is. Did we? 1201(f)(4), like the legal definition of "program", is pretty general, but IMHO is perfectly fair (and I'm not being biased for the defense when I say that, though I may be exposing my degree of technical ignorance). Putting together the definitions of "program" and "interoperability", it doesn't seem at all far-fetched to argue that DeCSS falls under the RE exemption of 1201 because it enables DVDs to interoperate with computer operating system, Linux and others as well. (At this point I'd just like to say pardon me if this has been pointed out before and I missed it. Maybe it's good to bring up again though.) Judge Jackson in the MS trial: "An 'operating system' is a software program.." (quote in faq 3.4.4) Qualification: calling DeCSS RE itself, as the above para. implies, causes me some cognitive dissonance - looking *only* at DeCSS, as the MPAA plaintiffs will want the court to do, makes it look like just an attempt to circumvent access control. In particular, the trafficking of DeCSS will be isolated in the plaintiff's arguments as not an instance of RE. Obviously there would still have to be a contextualization of DeCSS as part of a legitimate RE effort; additionally, as the effort was open source, there would be justification to argue that DeCSS's distribution is likewise a legitimate part of that effort, not an attempt to defraud the movie industry. I don't know if this would water down the RE argument too much. It may be worthwhile to remember/point out to others though, that RE is never a program strictly speaking, but a (business) effort, and thus no program will fall under the RE exemption save through context. In other words, RE *is* context. You could probably isolate lots of other computer RE tools and, save through context of use, they would be illegal. That having been said, I think that based on the def of interoperability, there is legal opening for a serious application of the RE exemption. If the DVD exchanges info with the operating system, which I think it's safe to say it does, the opening is there. Obviously this rests on whether we can call a DVD a program, but consensus so far seems to have been on the yes side of that. I'd like to point out, as an aside, that understood this way, the RE exemption becomes vast. "Programs" as instruction sets that produce a "result", and "interoperability" as simple exchange of info between these instruction sets, encompasses everything except maybe drivers. Someone should definitely weigh in on this driver question here; if drivers can't fall into these defs, then, amazingly, they are not wide *enough* (for purposes of 1201 RE exemptions). sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 15 22:31:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28407 for dvd-discuss-outgoing; Sat, 15 Apr 2000 22:31:51 -0400 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 WAA28404 for ; Sat, 15 Apr 2000 22:31:50 -0400 Received: from bugbug (max01-08.suba.com [206.69.121.200]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA22036 for ; Sat, 15 Apr 2000 21:31:46 -0500 (CDT) From: "sparky" To: Subject: [dvd-discuss] anti1201 inaccessible Date: Sat, 15 Apr 2000 21:31:04 -0500 Message-ID: <000101bfa74b$d05e73e0$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: <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> 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 just discovered that my anti1201 page (http://www.zenadmen.com/anti1201) is now inaccessible. My hosting group has upped the security apparently, no one is permitted into my site folders unless there's a htm doc in it. I don't know if this is normal or what. It makes sense, but it wasn't that way before. Wendy, that link to anti1201 on the Openlaw site will go nowhere now. Please change the link to zenadmen.com/anti1201htm, which is the html version. Anyone else with links to 1201 (Rob?) should do likewise. sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 15 22:33:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28552 for dvd-discuss-outgoing; Sat, 15 Apr 2000 22:33:14 -0400 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 WAA28549 for ; Sat, 15 Apr 2000 22:33:13 -0400 Received: from [38.32.10.154] (helo=ip154.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 12ges3-0000Xo-00; Sat, 15 Apr 2000 22:33:11 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Sat, 15 Apr 2000 22:27:49 -0400 Message-ID: References: <4.1.20000414091438.00a12100@law.harvard.edu> <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> In-Reply-To: <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> X-Mailer: Forte Agent 1.8/32.548 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 WAA28550 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 15 Apr 2000 14:56:35 -0500, "sparky" wrote: >There has been a lot of wrangling over the RE exemption not applying to >DeCSS because there did not seem to be a way to link DVDs as a program to >other programs - in other words, the "interoperability" was the sticking >point. Maybe we weren't thinking like lawyers yet, because I think there was >a general assumption that we knew what "interoperability" is. Did we? This led initially to the whole thread about whether DVD-Video is a program and then, to the "Turing Complete" thread. (In the hearing transcript atty. Gold tells Judge Kaplan that a DVD is only data, which I find controversial.) >that, though I may be exposing my degree of technical ignorance). Putting >together the definitions of "program" and "interoperability", it doesn't >seem at all far-fetched to argue that DeCSS falls under the RE exemption of >1201 because it enables DVDs to interoperate with computer operating system, >Linux and others as well. (At this point I'd just like to say pardon me if I'd note that in Oct 99 only two OSes had native support for DVD: Windows 98SE, and Mac OS 8.1+. We might actually claim that DeCSS is for bringing DVD-compatibility to Windows 95/NT as well as Linux. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 15 23:18:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30584 for dvd-discuss-outgoing; Sat, 15 Apr 2000 23:18:47 -0400 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 XAA30581 for ; Sat, 15 Apr 2000 23:18:45 -0400 Received: from [38.32.10.154] (helo=ip154.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 12gfa8-0000zu-00; Sat, 15 Apr 2000 23:18:44 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Sat, 15 Apr 2000 23:13:22 -0400 Message-ID: References: <4.1.20000414091438.00a12100@law.harvard.edu> <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> In-Reply-To: X-Mailer: Forte Agent 1.8/32.548 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 XAA30582 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >>There has been a lot of wrangling over the RE exemption not applying to >>DeCSS because there did not seem to be a way to link DVDs as a program to >>other programs - in other words, the "interoperability" was the sticking >>point. Maybe we weren't thinking like lawyers yet, because I think there was >>a general assumption that we knew what "interoperability" is. Did we? ps. I have no idea what interoperability means legally. Here's a dictionary def: in.ter.op.er.a.bil.i.ty n (1977): ability of a system (as a weapons system) to use the parts or equipment of another system -- in.ter.op.er.a.ble adj __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 15 23:53:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31365 for dvd-discuss-outgoing; Sat, 15 Apr 2000 23:53:45 -0400 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 XAA31362 for ; Sat, 15 Apr 2000 23:53:43 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA14402; Sat, 15 Apr 2000 23:53:42 -0400 Date: Sat, 15 Apr 2000 23:53:42 -0400 From: Jim Bauer Message-Id: <200004160353.XAA14402@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Newsgroups: local.dvd-discuss In-Reply-To: <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From "sparky" : >The RE angle has been hashed out about 5 billion times, but in working on >issues in the FAQ, I've found something I don't remember being posted: the >legal definition of interoperability: > >1201(f)(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." > >There has been a lot of wrangling over the RE exemption not applying to >DeCSS because there did not seem to be a way to link DVDs as a program to >other programs - in other words, the "interoperability" was the sticking >point. Maybe we weren't thinking like lawyers yet, because I think there was >a general assumption that we knew what "interoperability" is. Did we? > >1201(f)(4), like the legal definition of "program", is pretty general, but >IMHO is perfectly fair (and I'm not being biased for the defense when I say >that, though I may be exposing my degree of technical ignorance). Putting >together the definitions of "program" and "interoperability", it doesn't >seem at all far-fetched to argue that DeCSS falls under the RE exemption of >1201 because it enables DVDs to interoperate with computer operating system, >Linux and others as well. (At this point I'd just like to say pardon me if >this has been pointed out before and I missed it. Maybe it's good to bring >up again though.) Judge Jackson in the MS trial: "An 'operating system' is a >software program.." (quote in faq 3.4.4) Even if DVDs were not programs, I think the interroperability argument might still apply. In that case, the interroperability is not between the DVD and a computer running DcCSS, but between the program that wrote the DVD and the program that is reading the DVD. >Qualification: calling DeCSS RE itself, as the above para. implies, causes >me some cognitive dissonance - looking *only* at DeCSS, as the MPAA >plaintiffs will want the court to do, makes it look like just an attempt to >circumvent access control. In particular, the trafficking of DeCSS will be >isolated in the plaintiff's arguments as not an instance of RE. Obviously >there would still have to be a contextualization of DeCSS as part of a >legitimate RE effort; additionally, as the effort was open source, there >would be justification to argue that DeCSS's distribution is likewise a >legitimate part of that effort, not an attempt to defraud the movie >industry. I don't know if this would water down the RE argument too much. It >may be worthwhile to remember/point out to others though, that RE is never a >program strictly speaking, but a (business) effort, and thus no program will >fall under the RE exemption save through context. In other words, RE *is* >context. You could probably isolate lots of other computer RE tools and, >save through context of use, they would be illegal. I would argue that no program is RE. A program is something that 'is', while RE is something that one 'does'. RE is a practice of determining who something works. The resulting knowledge can be used for various uses such as creating a program like DeCSS. >That having been said, I think that based on the def of interoperability, >there is legal opening for a serious application of the RE exemption. If the >DVD exchanges info with the operating system, which I think it's safe to say >it does, the opening is there. Obviously this rests on whether we can call a >DVD a program, but consensus so far seems to have been on the yes side of >that. Based on the definitions here I would have to agree. >I'd like to point out, as an aside, that understood this way, the RE >exemption becomes vast. "Programs" as instruction sets that produce a >"result", and "interoperability" as simple exchange of info between these >instruction sets, encompasses everything except maybe drivers. Someone >should definitely weigh in on this driver question here; if drivers can't >fall into these defs, then, amazingly, they are not wide *enough* (for >purposes of 1201 RE exemptions). I don't understand why you think drivers would be different? Without getting too complicated, a driver is just part of an operating system that talks to some piece of hardware. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 02:47:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA02655 for dvd-discuss-outgoing; Sun, 16 Apr 2000 02:47:05 -0400 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 CAA02652 for ; Sun, 16 Apr 2000 02:47:04 -0400 Received: from bugbug (max01-25.suba.com [206.69.121.217]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id BAA25416 for ; Sun, 16 Apr 2000 01:46:57 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 01:46:15 -0500 Message-ID: <000001bfa76f$760f8400$d97945ce@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: <200004160353.XAA14402@emperor.hwrd1.md.home.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 Jim Bauer wrote: > > >From "sparky" : > > > >1201(f)(4), like the legal definition of "program", is pretty > general, but > >IMHO is perfectly fair (and I'm not being biased for the defense > when I say > >that, though I may be exposing my degree of technical ignorance). Putting > >together the definitions of "program" and "interoperability", it doesn't > >seem at all far-fetched to argue that DeCSS falls under the RE > exemption of > >1201 because it enables DVDs to interoperate with computer > operating system, > >Linux and others as well. (At this point I'd just like to say > pardon me if > >this has been pointed out before and I missed it. Maybe it's > good to bring > >up again though.) Judge Jackson in the MS trial: "An 'operating > system' is a > >software program.." (quote in faq 3.4.4) > > Even if DVDs were not programs, I think the interroperability argument > might still apply. In that case, the interroperability is not between > the DVD and a computer running DcCSS, but between the program that > wrote the DVD and the program that is reading the DVD. I think this sort of once-removed relation of the interoperating programs might be perfectly correct technically. It might be harder to persuade someone (the judge) legally. This impression of mine may only stem from what I *imagined* interoperability to mean when I was reading 1201's language; I imagined it to apply to two programs exchanging info at runtime, in other words two programs running at the same time. What your scenario suggests - and others have suggested similar scenarios in the RE arguments before, I think - is that run time wouldn't be an issue. A program might run and create information and then stop; later, another program could receive this info somehow and use it. That still sounds like interoperability, in the general sense of 1201(f)(4). Having said that, I have to point out that DeCSS is never involved in the interoperability scenario; it is just the program used to circumvent access control in an RE effort to create interoperability between two programs, one of which in my understanding is the DVD, the other being an OS. Also, I don't know if a scenario of interoperability between the programs that "write" and "read" the DVD would stand, because I think the DVD *is* the latter program, which would mean that this "interoperability" already existed before the RE. Well, this really amounts to me reasserting that the DVD is a program. We have to remember though, that the def of programs we're working with is the legal one, which is a set of instructions which produces some result. So the real question to be asked is: is there any reason *not* to consider DVDs as programs, based on this def? > > >I'd like to point out, as an aside, that understood this way, the RE > >exemption becomes vast. "Programs" as instruction sets that produce a > >"result", and "interoperability" as simple exchange of info between these > >instruction sets, encompasses everything except maybe drivers. Someone > >should definitely weigh in on this driver question here; if drivers can't > >fall into these defs, then, amazingly, they are not wide *enough* (for > >purposes of 1201 RE exemptions). > > I don't understand why you think drivers would be different? Without > getting too complicated, a driver is just part of an operating system > that talks to some piece of hardware. Well, my thought was that the RE exemption exists in 1201 for interoperability of programs; drivers are programs, but I was considering that the fact that they interoperate with hardware as maybe putting them outside the "interoperability of programs" criterion. But if they are part of the OS, then I guess they wouldn't; also, I suppose even if they interoperate with hardware, they still have to interoperate with other programs too, at least other programs within the OS. sparky > > -- > Jim Bauer, jfbauer@home.com > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 11:36:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16667 for dvd-discuss-outgoing; Sun, 16 Apr 2000 11:36:30 -0400 Received: from aloha.webkahuna.com (aloha.webkahuna.com [207.26.54.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA16664 for ; Sun, 16 Apr 2000 11:36:28 -0400 Received: from rollerblade (surfboard.webkahuna.com [199.217.229.16]) by aloha.webkahuna.com (8.9.1a/8.9.1) with SMTP id KAA07252 for ; Sun, 16 Apr 2000 10:36:26 -0500 From: "Andrew W. Finkenstadt" To: Subject: RE: [dvd-discuss] anti1201 inaccessible Date: Sun, 16 Apr 2000 10:36:32 -0400 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: <000101bfa74b$d05e73e0$c87945ce@bugbug.WinNATDomain> Importance: Normal 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 You could create a file called "default.htm" or "welcome.htm" or "index.htm" and see if that makes the original link work. If the server is Windows NT based, it will be default.htm or default.asp as the filename. If the server is Apache-based, then you will want to use index.html or index.htm. Andy Andrew Finkenstadt - 636-939-5562 -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of sparky Sent: Saturday, April 15, 2000 10:31 PM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] anti1201 inaccessible I've just discovered that my anti1201 page (http://www.zenadmen.com/anti1201) is now inaccessible. My hosting group has upped the security apparently, no one is permitted into my site folders unless there's a htm doc in it. I don't know if this is normal or what. It makes sense, but it wasn't that way before. Wendy, that link to anti1201 on the Openlaw site will go nowhere now. Please change the link to zenadmen.com/anti1201htm, which is the html version. Anyone else with links to 1201 (Rob?) should do likewise. sparky From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 14:14:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA21489 for dvd-discuss-outgoing; Sun, 16 Apr 2000 14:14:54 -0400 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 OAA21486 for ; Sun, 16 Apr 2000 14:14:53 -0400 Received: from bugbug (max01-26.suba.com [206.69.121.218]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id NAA04123 for ; Sun, 16 Apr 2000 13:14:50 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] anti1201 inaccessible Date: Sun, 16 Apr 2000 13:14:06 -0500 Message-ID: <000201bfa7cf$8db3c160$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: 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 think my hosting is Apache based, because I've been using index.htm for my default pages. (The hosting group is Hostway.) I don't think adding an additional htm page in the original folder will do the trick, because the way the folder worked was you called it up with the browser and you could just see what was in it, as there were no html docs, just text files and other folders. Am I understanding you? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Andrew W. > Finkenstadt > Sent: Sunday, April 16, 2000 9:37 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] anti1201 inaccessible > > > You could create a file called "default.htm" or "welcome.htm" or > "index.htm" > and see if that makes the original link work. If the server is Windows NT > based, it will be default.htm or default.asp as the filename. If > the server > is Apache-based, then you will want to use index.html or index.htm. > > Andy > > Andrew Finkenstadt - 636-939-5562 > > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of sparky > Sent: Saturday, April 15, 2000 10:31 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] anti1201 inaccessible > > I've just discovered that my anti1201 page > (http://www.zenadmen.com/anti1201) is now inaccessible. My > hosting group has > upped the security apparently, no one is permitted into my site folders > unless there's a htm doc in it. I don't know if this is normal or what. It > makes sense, but it wasn't that way before. Wendy, that link to > anti1201 on > the Openlaw site will go nowhere now. Please change the link to > zenadmen.com/anti1201htm, which is the html version. > > Anyone else with links to 1201 (Rob?) should do likewise. > > sparky > > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 14:57:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22530 for dvd-discuss-outgoing; Sun, 16 Apr 2000 14:57:15 -0400 Received: from aloha.webkahuna.com (aloha.webkahuna.com [207.26.54.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA22527 for ; Sun, 16 Apr 2000 14:57:14 -0400 Received: from rollerblade (surfboard.webkahuna.com [199.217.229.16]) by aloha.webkahuna.com (8.9.1a/8.9.1) with SMTP id NAA16166 for ; Sun, 16 Apr 2000 13:57:11 -0500 From: "Andrew W. Finkenstadt" To: Subject: RE: [dvd-discuss] anti1201 inaccessible Date: Sun, 16 Apr 2000 13:57:18 -0400 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: <000201bfa7cf$8db3c160$da7945ce@bugbug.WinNATDomain> Importance: Normal 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 Ah, I was thinking that you would document each item in the folder (sub-folder) with a link to the item from the index.htm page. You might be able to upload a '.htaccess' file with the contents: Options DirectoryIndex To override/specifically allow directory indexing in that directory. Andy Andrew Finkenstadt - 636-939-5562 -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of sparky Sent: Sunday, April 16, 2000 2:14 PM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] anti1201 inaccessible I think my hosting is Apache based, because I've been using index.htm for my default pages. (The hosting group is Hostway.) I don't think adding an additional htm page in the original folder will do the trick, because the way the folder worked was you called it up with the browser and you could just see what was in it, as there were no html docs, just text files and other folders. Am I understanding you? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Andrew W. > Finkenstadt > Sent: Sunday, April 16, 2000 9:37 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] anti1201 inaccessible > > > You could create a file called "default.htm" or "welcome.htm" or > "index.htm" > and see if that makes the original link work. If the server is Windows NT > based, it will be default.htm or default.asp as the filename. If > the server > is Apache-based, then you will want to use index.html or index.htm. > > Andy > > Andrew Finkenstadt - 636-939-5562 > > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of sparky > Sent: Saturday, April 15, 2000 10:31 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] anti1201 inaccessible > > I've just discovered that my anti1201 page > (http://www.zenadmen.com/anti1201) is now inaccessible. My > hosting group has > upped the security apparently, no one is permitted into my site folders > unless there's a htm doc in it. I don't know if this is normal or what. It > makes sense, but it wasn't that way before. Wendy, that link to > anti1201 on > the Openlaw site will go nowhere now. Please change the link to > zenadmen.com/anti1201htm, which is the html version. > > Anyone else with links to 1201 (Rob?) should do likewise. > > sparky > > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 16:15:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24629 for dvd-discuss-outgoing; Sun, 16 Apr 2000 16:15:24 -0400 Received: from dial238.roadrunner.com (dial238.cybermesa.com [209.12.75.238]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24626 for ; Sun, 16 Apr 2000 16:15:22 -0400 Received: (from paul@localhost) by dial238.roadrunner.com (8.8.7/8.8.7) id OAA00634 for dvd-discuss@eon.law.harvard.edu; Sun, 16 Apr 2000 14:18:59 -0600 Date: Sun, 16 Apr 2000 14:18:59 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000416141858.A542@localhost> References: <4.1.20000414091438.00a12100@law.harvard.edu> <000001bfa714$b420dba0$d87945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from rongus@tiac.net on Sat, Apr 15, 2000 at 10:27:49PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Apr 15, 2000 at 10:27:49PM -0400, Ron Gustavson wrote: > then, to the "Turing Complete" thread. (In the hearing transcript atty. > Gold tells Judge Kaplan that a DVD is only data, which I find controversial.) I think it will be hard for Mr. Gold to walk into court now and claim an "href" is not data when he's already on record as saying DVD video is only data. I'm not saying we should argue this as a defense point, but it might be worth while to point out that the plaintiffs are willing to let their definitions swing in the wind. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 17:35:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26891 for dvd-discuss-outgoing; Sun, 16 Apr 2000 17:35:07 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA26888 for ; Sun, 16 Apr 2000 17:35:06 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028AJL>; Sun, 16 Apr 2000 17:36:47 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 17:36:46 -0400 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 In the discussion about RE, it seems a tacit assumption that RE is somehow a special or distinctive part of writing a piece of software. That is just not true. RE is very common because documentation is inadequate or the software under development needs to integrate with other software in a unique manner. In practice, it is difficult or impossible to separate RE techniques from other implementation techniques in any major software development effort. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 17:51:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27293 for dvd-discuss-outgoing; Sun, 16 Apr 2000 17:51:15 -0400 Received: from mzdy10.allegro.net (mzdy10.allegro.net [204.253.83.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA27290 for ; Sun, 16 Apr 2000 17:51:14 -0400 Received: from mail5.allegro.net (unverified) by mzdy10.allegro.net (Content Technologies SMTPRS 2.0.15) with SMTP id for ; Sun, 16 Apr 2000 17:51:10 -0400 Received: from Allegro5-Message_Server by mail5.allegro.net with Novell_GroupWise; Sun, 16 Apr 2000 17:49:05 -0400 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Sun, 16 Apr 2000 17:50:45 -0400 From: To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] I wi 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 RAA27291 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I will be out of town on business from Sunday, April 16, 2000 until Friday, April 21, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 04/16/00 17:36 >>> In the discussion about RE, it seems a tacit assumption that RE is somehow a special or distinctive part of writing a piece of software. That is just not true. RE is very common because documentation is inadequate or the software under development needs to integrate with other software in a unique manner. In practice, it is difficult or impossible to separate RE techniques from other implementation techniques in any major software development effort. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 18:05:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27691 for dvd-discuss-outgoing; Sun, 16 Apr 2000 18:05:06 -0400 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 SAA27688 for ; Sun, 16 Apr 2000 18:05:05 -0400 Received: from bugbug (max01-01.suba.com [206.69.121.193]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id RAA08549 for ; Sun, 16 Apr 2000 17:05:01 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 17:04:20 -0500 Message-ID: <000001bfa7ef$b7477880$c17945ce@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: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.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 Leland rWote: > > > In the discussion about RE, it seems a tacit assumption that > RE is somehow a special or distinctive part of writing a piece > of software. > > That is just not true. RE is very common because documentation > is inadequate or the software under development needs to integrate > with other software in a unique manner. In practice, it is > difficult or impossible to separate RE techniques from other > implementation techniques in any major software development effort. > > Hm. And yet I don't think it would do to go into court and begin arguments that would basically make all software development a form of RE. This is, however, something that probably should be mentioned in the faq, pointing out where a "technical" point of view is likely to see RE everywhere, in contrast to the apparent legal point of view, which seems to see RE as different from "normal" software development. sparky From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 18:07:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27796 for dvd-discuss-outgoing; Sun, 16 Apr 2000 18:07:01 -0400 Received: from mzdy11.allegro.net (mzdy11.allegro.net [204.253.83.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA27792 for ; Sun, 16 Apr 2000 18:07:00 -0400 Received: from mail5.allegro.net (unverified) by mzdy11.allegro.net (Content Technologies SMTPRS 2.0.15) with SMTP id for ; Sun, 16 Apr 2000 18:06:57 -0400 Received: from Allegro5-Message_Server by mail5.allegro.net with Novell_GroupWise; Sun, 16 Apr 2000 18:04:52 -0400 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Sun, 16 Apr 2000 18:06:36 -0400 From: To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] I wi 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 SAA27793 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I will be out of town on business from Sunday, April 16, 2000 until Friday, April 21, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 04/16/00 17:50 >>> I will be out of town on business from Sunday, April 16, 2000 until Friday, April 21, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 04/16/00 17:36 >>> In the discussion about RE, it seems a tacit assumption that RE is somehow a special or distinctive part of writing a piece of software. That is just not true. RE is very common because documentation is inadequate or the software under development needs to integrate with other software in a unique manner. In practice, it is difficult or impossible to separate RE techniques from other implementation techniques in any major software development effort. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 20:26:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32482 for dvd-discuss-outgoing; Sun, 16 Apr 2000 20:26:00 -0400 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 UAA32479 for ; Sun, 16 Apr 2000 20:25:58 -0400 Received: from bugbug (max01-04.suba.com [206.69.121.196]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA11680 for ; Sun, 16 Apr 2000 19:25:55 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) - 1201(f)(3) allows circulation of DeCSS? Date: Sun, 16 Apr 2000 19:25:12 -0500 Message-ID: <000001bfa803$65844a00$c47945ce@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: <000001bfa7ef$b7477880$c17945ce@bugbug.WinNATDomain> 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 ADditional note on the RE thing: 1201(f)(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." Note: "AND THE MEANS PERMITTED UNDER PARAGRAPH (2)" - that is: 1201(f)(2): "[...] a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or 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." ******** These two pargraphs are starting to make it look VERY black and white to me. Given that DeCSS is a "means to circumvent [...] protection afforded by a technological measure [...] if such means are necessary to achieve such interoperability" - then 1201(f)(3) says it's okay to distribute it, as long as it's "solely for the purpose of enabling interoperability". We have in 1201(f)(2) the permission to argue significantly that DeCSS is part of a RE effort. Arguing that DVDs are programs and the RE was done to get them to operate with OSs other than Windows becomes part of showing that the effort *was* an RE effort. The only thing left is how 2600 was circulating DeCSS. This is the kicker. I'm a bit apprehensive about asking this, but can anyone state how DeCSS was being circulated on that site? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of sparky > Sent: Sunday, April 16, 2000 5:04 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > > Leland rWote: > > > > > > In the discussion about RE, it seems a tacit assumption that > > RE is somehow a special or distinctive part of writing a piece > > of software. > > > > That is just not true. RE is very common because documentation > > is inadequate or the software under development needs to integrate > > with other software in a unique manner. In practice, it is > > difficult or impossible to separate RE techniques from other > > implementation techniques in any major software development effort. > > > > > > Hm. And yet I don't think it would do to go into court and begin arguments > that would basically make all software development a form of RE. > > This is, however, something that probably should be mentioned in the faq, > pointing out where a "technical" point of view is likely to see RE > everywhere, in contrast to the apparent legal point of view, > which seems to > see RE as different from "normal" software development. > > sparky > > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 20:30:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32754 for dvd-discuss-outgoing; Sun, 16 Apr 2000 20:30:53 -0400 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 UAA32751 for ; Sun, 16 Apr 2000 20:30:52 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA19272; Sun, 16 Apr 2000 20:30:45 -0400 Date: Sun, 16 Apr 2000 20:30:45 -0400 From: Jim Bauer Message-Id: <200004170030.UAA19272@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Newsgroups: local.dvd-discuss In-Reply-To: <000001bfa76f$760f8400$d97945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sparky wrote: > >I think this sort of once-removed relation of the interoperating programs >might be perfectly correct technically. It might be harder to persuade >someone (the judge) legally. This impression of mine may only stem from what >I *imagined* interoperability to mean when I was reading 1201's language; I >imagined it to apply to two programs exchanging info at runtime, in other >words two programs running at the same time. What your scenario suggests - >and others have suggested similar scenarios in the RE arguments before, I >think - is that run time wouldn't be an issue. A program might run and >create information and then stop; later, another program could receive this >info somehow and use it. That still sounds like interoperability, in the >general sense of 1201(f)(4). Think about interroperability between data formats. Is a file written by MS Word interoperabile with Wordperfect or Applix or whatever? Or perhaps more similar to DVD. Can a floppy written on one system be used on some other system? In other words, are the floppy formats interoperabile with each other? But before you say a floppy isn't a program, remember the interoperability is really between the two OSes reading/writing to/from the floppy. >Having said that, I have to point out that DeCSS is never involved in the >interoperability scenario; it is just the program used to circumvent access >control in an RE effort to create interoperability between two programs, one >of which in my understanding is the DVD, the other being an OS. > >Also, I don't know if a scenario of interoperability between the programs >that "write" and "read" the DVD would stand, because I think the DVD *is* >the latter program, which would mean that this "interoperability" already >existed before the RE. Well, this really amounts to me reasserting that the >DVD is a program. We have to remember though, that the def of programs we're >working with is the legal one, which is a set of instructions which produces >some result. So the real question to be asked is: is there any reason *not* >to consider DVDs as programs, based on this def? And I think we need to be prepared for a DVD to be ruled a non-program. It might be obvious to us, but perhaps not the the Judge. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 20:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00645 for dvd-discuss-outgoing; Sun, 16 Apr 2000 20:41:32 -0400 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 UAA00642 for ; Sun, 16 Apr 2000 20:41:26 -0400 Received: from bugbug (max01-04.suba.com [206.69.121.196]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA11967 for ; Sun, 16 Apr 2000 19:41:23 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 19:40:41 -0500 Message-ID: <000201bfa805$8eb9b020$c47945ce@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: <200004170030.UAA19272@emperor.hwrd1.md.home.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 Jim Bauer wrote: > > Sparky wrote: > > > >I think this sort of once-removed relation of the interoperating programs > >might be perfectly correct technically. It might be harder to persuade > >someone (the judge) legally. This impression of mine may only > stem from what > >I *imagined* interoperability to mean when I was reading 1201's > language; I > >imagined it to apply to two programs exchanging info at runtime, in other > >words two programs running at the same time. What your scenario > suggests - > >and others have suggested similar scenarios in the RE arguments before, I > >think - is that run time wouldn't be an issue. A program might run and > >create information and then stop; later, another program could > receive this > >info somehow and use it. That still sounds like interoperability, in the > >general sense of 1201(f)(4). > > Think about interroperability between data formats. Is a file written > by MS Word interoperabile with Wordperfect or Applix or whatever? > Or perhaps more similar to DVD. Can a floppy written on one system > be used on some other system? In other words, are the floppy formats > interoperabile with each other? But before you say a floppy isn't a > program, remember the interoperability is really between the two OSes > reading/writing to/from the floppy. Right about the OSs. I'm going to be a stickler though; we've got to call the floppy, or the Word file, info that's exchanged, not one of the interoperating programs. Even more strictly, the format on the floppy is the filesystem, ie the medium in which the info is written; different OSs will or will not be able to interpret the filesystem. some OSs can read more than one filesystem, no? Or do emulators always have to be created? > > >Having said that, I have to point out that DeCSS is never involved in the > >interoperability scenario; it is just the program used to > circumvent access > >control in an RE effort to create interoperability between two > programs, one > >of which in my understanding is the DVD, the other being an OS. > > > >Also, I don't know if a scenario of interoperability between the programs > >that "write" and "read" the DVD would stand, because I think the DVD *is* > >the latter program, which would mean that this "interoperability" already > >existed before the RE. Well, this really amounts to me > reasserting that the > >DVD is a program. We have to remember though, that the def of > programs we're > >working with is the legal one, which is a set of instructions > which produces > >some result. So the real question to be asked is: is there any > reason *not* > >to consider DVDs as programs, based on this def? > > And I think we need to be prepared for a DVD to be ruled a non-program. > It might be obvious to us, but perhaps not the the Judge. Maybe not as much as we might fear. Program a la legal: "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." Result: viewable movie. Statements/ instructions: Dana, could you insert a specific answer here? I can't. spark > -- > Jim Bauer, jfbauer@home.com > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 22:09:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02837 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:09:50 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02834 for ; Sun, 16 Apr 2000 22:09:49 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028ANK>; Sun, 16 Apr 2000 22:11:30 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C4E@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 22:11:29 -0400 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 The short answer is yes, some OSs can read different formats on media. There are caveats relating different hardware on different machines, and file system data may not be possible for another OS to interpret. Interpreting data on a DVD as a sequence of instructions for producing the visual image opens up a significant discussion because the player really becomes a platform and the CPU or operating system becomes a secondary issue. This is one of those distinctions that IMHO needs to be made early in the argument (with a run of the argument for both "DVD as program" and "DVD as data"). So running this argument, the DVD player (be it software or hardware) is the only licensed platform with which you can view the work. In order to keep the works secure, the DVDCCA issues player keys and imposes functional requirements on the player. There are several ways the argument would flow at this point. One would be to argue the DVDCCA must demonstrate that the only functional requirements it imposes directly affects stated rights of the copyright owner. A second argument would be to interpret the "with the authority" clause as process -- the authority is conveyed in the process rather than the product. The process of CSS, especially the drive authentication system using bus keys, and the related special calls that control access to key blocks, might be the only part of CSS that controls access to the work. In other words, once you get the data off of physical media, you now "have access" regardless of whether you choose to use a licensed player key or not. So an individual who uses special hardware to duplicate DVDs is clearly breaking the law. But if I were to use DeCSS to pull a small clip of a movie and distribute it with a review of the movie ("I thought Brad Pitt did a great job in this scene...") it might or might not be breaking the law depending on the totality of the situation. -----Original Message----- From: sparky [mailto:sparky@suba.com] Sent: Sunday, April 16, 2000 8:41 PM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Jim Bauer wrote: Right about the OSs. I'm going to be a stickler though; we've got to call the floppy, or the Word file, info that's exchanged, not one of the interoperating programs. Even more strictly, the format on the floppy is the filesystem, ie the medium in which the info is written; different OSs will or will not be able to interpret the filesystem. some OSs can read more than one filesystem, no? Or do emulators always have to be created? Maybe not as much as we might fear. Program a la legal: "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." Result: viewable movie. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 22:13:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02968 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:13:09 -0400 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 WAA02965 for ; Sun, 16 Apr 2000 22:13:07 -0400 Received: from bugbug (max01-43.suba.com [206.69.121.235]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA14151 for ; Sun, 16 Apr 2000 21:13:04 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] anti1201 inaccessible Date: Sun, 16 Apr 2000 21:12:22 -0500 Message-ID: <000401bfa812$5df9e880$c47945ce@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 I'd like to take this opportunity to say: yes, I'm a dummy. I have renamed the anti1201 site so that the html is now at anti1201, not at anti1201htm. This makes more sense to me than to have everyone change links, and to worry about two separate sites, etc. it's amazing what your brain will do for you once you plug it in. Again, for the archive of complete strings, the address is (and will remain): http://www.zenadmen.com/anti1201. sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Andrew W. > Finkenstadt > Sent: Sunday, April 16, 2000 12:57 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] anti1201 inaccessible > > > Ah, I was thinking that you would document each item in the folder > (sub-folder) with a link to the item from the index.htm page. > > You might be able to upload a '.htaccess' file with the contents: > > Options DirectoryIndex > > To override/specifically allow directory indexing in that directory. > > Andy > > Andrew Finkenstadt - 636-939-5562 > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 22:13:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02990 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:13:24 -0400 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 WAA02986 for ; Sun, 16 Apr 2000 22:13:22 -0400 Received: (from schoen@localhost) by pie.cty-alum.org (8.9.3/8.9.3/Debian/GNU) id TAA06797 for dvd-discuss@eon.law.harvard.edu; Sun, 16 Apr 2000 19:13:14 -0700 Date: Sun, 16 Apr 2000 19:13:14 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) - 1201(f)(3) allows circulation of DeCSS? Message-ID: <20000416191314.G2423@cty-alum.org> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <000001bfa7ef$b7477880$c17945ce@bugbug.WinNATDomain> <000001bfa803$65844a00$c47945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000001bfa803$65844a00$c47945ce@bugbug.WinNATDomain>; from sparky@suba.com on Sun, Apr 16, 2000 at 07:25:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky writes: > ADditional note on the RE thing: > > 1201(f)(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." > > Note: "AND THE MEANS PERMITTED UNDER PARAGRAPH (2)" - that is: > > 1201(f)(2): "[...] a person may develop and employ technological means to > circumvent a technological measure, or to circumvent protection afforded by > a technological measure, in order to enable the identification and analysis > under paragraph (1), or 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." > > ******** > These two pargraphs are starting to make it look VERY black and white to me. > Given that DeCSS is a "means to circumvent [...] protection afforded by a > technological measure [...] if such means are necessary to achieve such > interoperability" - then 1201(f)(3) says it's okay to distribute it, as long > as it's "solely for the purpose of enabling interoperability". We have in > 1201(f)(2) the permission to argue significantly that DeCSS is part of a RE > effort. > > Arguing that DVDs are programs and the RE was done to get them to operate > with OSs other than Windows becomes part of showing that the effort *was* an > RE effort. Isn't it peculiar that this should be relevant at all, considering that any reverse engineering almost certainly happened _outside of the United States_, and was not itself a violation of the act, since 17 USC doesn't apply extraterritorially? > [some stuff about the question of what 2600's actual purpose was] I think that's a really important question. I doubt 1201(f)(3) can possibly do any good factually: "solely for the purpose" is probably hard to show for most publishers of DeCSS (as for the defendants in the current cases), because it is probably not true. Publishers of DeCSS have a wide assortment of motivations, some of which may include making a political statement against the DMCA or similar laws. (In particular, many people published DeCSS _not_ to enable piracy _or_ to enable interoperability, but because they wanted to prevent the program from being suppressed. Some people who have mirrored it and written about it have demonstrated that they don't really know exactly what the program does! But their purpose in distributing it is no less well established: in many cases, to fight censorship, and for no specific other reason.) I don't think you can get past that, in general, simply because so many mirror operators have made public statements about their wide range of purposes in distributing the code -- from "to support open source" to "to promote piracy" to "to annoy the MPAA" to "to protest the DMCA" to "to fight censorship in general" to "to promote the freedom of reverse engineering and cryptographic research". (I would be surprised if it were not possible to find each of these justifications expressed at least once in some essay written by some mirror site operator.) OK, somebody's going to say "cases are between parties" and insist that we only need to worry about public statements _by 2600 staff_ that indicate what their goals were (because they are the only people actually still accused in court of violating the DMCA). Even if this were the only thing to worry about, can anyone prove that _2600_ published a copy of DeCSS for the sole purpose of promoting the development of players for minority operating systems? This is a big task and a far-fetched claim in the context of a very public mirroring campaign about which _2600_ and its supporters have written a great deal. :-) I just don't want anyone to get carried away with this exception and neglect the phrase "solely for the purpose" here; although this exception provides _a possible defense_ for some purpose publishing DeCSS, it is important to consider whether that defense is really applicable to real-world defendants, who are hand-picked for that role by plaintiffs' lawyers. -- 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 Sun Apr 16 22:24:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03336 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:24:35 -0400 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 WAA03333 for ; Sun, 16 Apr 2000 22:24:34 -0400 Received: from bugbug (max01-43.suba.com [206.69.121.235]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA14437 for ; Sun, 16 Apr 2000 21:24:30 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 21:23:48 -0500 Message-ID: <000501bfa813$f67263c0$c47945ce@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: <611C0CE12596D311B466009027D5E7591E4C4E@c3100.clearway.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 Leland wrote: > > The short answer is yes, some OSs can read different formats on media. > There are caveats relating different hardware on different machines, > and file system data may not be possible for another OS to interpret. > > Interpreting data on a DVD as a sequence of instructions for producing > the visual image opens up a significant discussion because the player > really becomes a platform and the CPU or operating system becomes a > secondary issue. This is one of those distinctions that IMHO needs to be > made early in the argument (with a run of the argument for both "DVD as > program" and "DVD as data"). In fact I think this may be more the case than less. I have read in the last couple of days (I forget where) that licensed hardware "players" have various computer components inside them, like RAM and even a *processor* in order to take the weight of running the movie off the host computer. (Otherwise, performance may degrade, etc, just generally need a better computer in order to really enjoy the movie.) Also, and this is again something Dana would be better qualified to answer, I think that the fact that each DVD movie is individually programmed, in order to take advantage of each movie's specific characteristics/design, implies that, whatever the licensed hardware player is contributing to the playing of the movie, it's probably pretty generic, as it's got to apply to all DVDs. The hardware player sounds more and more like a fancy disk drive. Some would even call it a computer. Eric? Care to chime in? > > So running this argument, the DVD player (be it software or hardware) > is the only licensed platform with which you can view the work. In order > to keep the works secure, the DVDCCA issues player keys and imposes > functional requirements on the player. > > There are several ways the argument would flow at this point. One > would be to argue the DVDCCA must demonstrate that the only functional > requirements it imposes directly affects stated rights of the copyright > owner. A second argument would be to interpret the "with the authority" > clause as process -- the authority is conveyed in the process rather than > the product. > > The process of CSS, especially the drive authentication > system using bus keys, and the related special calls that control access > to key blocks, might be the only part of CSS that controls access to the > work. In other words, once you get the data off of physical media, you now > "have access" regardless of whether you choose to use a licensed player > key or not. > > So an individual who uses special hardware to duplicate DVDs is clearly > breaking the law. But if I were to use DeCSS to pull a small clip of a > movie and distribute it with a review of the movie ("I thought Brad Pitt > did a great job in this scene...") it might or might not be breaking the > law depending on the totality of the situation. Could you repeat this train of thought in a little more detail? I'm not totally following. I've been out for a couple weeks, maybe you're referring to debate that's occurred in that time? sparky > > > -----Original Message----- > From: sparky [mailto:sparky@suba.com] > Sent: Sunday, April 16, 2000 8:41 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > Jim Bauer wrote: > Right about the OSs. I'm going to be a stickler though; we've got to call > the floppy, or the Word file, info that's exchanged, not one of the > interoperating programs. Even more strictly, the format on the > floppy is the > filesystem, ie the medium in which the info is written; different OSs will > or will not be able to interpret the filesystem. some OSs can > read more than > one filesystem, no? Or do emulators always have to be created? > > Maybe not as much as we might fear. Program a la legal: "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." Result: > viewable movie. > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 22:28:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03498 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:28:04 -0400 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 WAA03493 for ; Sun, 16 Apr 2000 22:28:04 -0400 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 WAA17955 for ; Sun, 16 Apr 2000 22:28:03 -0400 (EDT) Message-Id: <4.2.2.20000416212922.00d23b00@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sun, 16 Apr 2000 22:28:03 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <000001bfa76f$760f8400$d97945ce@bugbug.WinNATDomain> References: <200004160353.XAA14402@emperor.hwrd1.md.home.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 01:46 AM 4/16/00 -0500, sparky@suba.com wrote: >Jim Bauer wrote: > > > > > Even if DVDs were not programs, I think the interroperability argument > > might still apply. In that case, the interroperability is not between > > the DVD and a computer running DcCSS, but between the program that > > wrote the DVD and the program that is reading the DVD. If I want to write WordClone, the exception seems plainly to say that I can circumvent access controls on Windows to see the hooks for an undocumented file save function, and that I can circumvent access controls on Word to learn about its file formats. Can I instead circumvent the access controls on a Word document to get at the file format? Could depend whether it's seen as "mutually to use the information exchanged" or circumventing an independent access/copy control. I'd be willing to argue that an "access control" that works by allowing all users of Word, but no users of WordClone, to read and use the document is ripe for RE to permit "exchange [of] information." In any case, if the writer of the access-controlled Word doc put a macro into it, and I want WordClone to interoperate with that macro, sorry excuse for a program that it is, I'd say the RE exception applies in full force, even if I happen to gain access to the document text as well as the macro while I circumvent. From earlier discussions the elements on a DVD look more like the macro than like a textfile -- only after the files are processed with the DVD's instructions do they come out as a movie. To write a movie player, then, I need access to those instructions. The fact that Word didn't want me interoperating with its files doesn't alone give the files protection, any more than Sony or Sega can say the same about their videogames. >I think this sort of once-removed relation of the interoperating programs >might be perfectly correct technically. It might be harder to persuade >someone (the judge) legally. This impression of mine may only stem from what >I *imagined* interoperability to mean when I was reading 1201's language; I >imagined it to apply to two programs exchanging info at runtime, in other >words two programs running at the same time. What your scenario suggests - >and others have suggested similar scenarios in the RE arguments before, I >think - is that run time wouldn't be an issue. A program might run and >create information and then stop; later, another program could receive this >info somehow and use it. That still sounds like interoperability, in the >general sense of 1201(f)(4). > >Having said that, I have to point out that DeCSS is never involved in the >interoperability scenario; it is just the program used to circumvent access >control in an RE effort to create interoperability between two programs, one >of which in my understanding is the DVD, the other being an OS. This is still a sticker. The RE'ing circumventer can only be distributed to help others in developing interoperating programs. However, since open source development presumes that anyone who uses a program can also be a developer, it does open the argument that DeCSS distribution via the 2600.com website was an invitation to others to join the development of an open source DVD player. Only by experimenting with the half-formed tools and the intermediate steps could others help to build from them. Thoughts, at least... and more encouraging than the language in the Senate Report. --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 22:47:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04061 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:47:24 -0400 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 WAA04058 for ; Sun, 16 Apr 2000 22:47:23 -0400 Received: from bugbug (max01-43.suba.com [206.69.121.235]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA15002 for ; Sun, 16 Apr 2000 21:47:20 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) - 1201(f)(3) allows circulation of DeCSS? Date: Sun, 16 Apr 2000 21:46:37 -0500 Message-ID: <000601bfa817$26a49e20$c47945ce@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: <20000416191314.G2423@cty-alum.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 Seth wrote: > > sparky writes: > > > ADditional note on the RE thing: > > > > 1201(f)(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." > > > > Note: "AND THE MEANS PERMITTED UNDER PARAGRAPH (2)" - that is: > > > > 1201(f)(2): "[...] a person may develop and employ > technological means to > > circumvent a technological measure, or to circumvent protection > afforded by > > a technological measure, in order to enable the identification > and analysis > > under paragraph (1), or 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." > > > > ******** > > These two pargraphs are starting to make it look VERY black and > white to me. > > Given that DeCSS is a "means to circumvent [...] protection > afforded by a > > technological measure [...] if such means are necessary to achieve such > > interoperability" - then 1201(f)(3) says it's okay to > distribute it, as long > > as it's "solely for the purpose of enabling interoperability". > We have in > > 1201(f)(2) the permission to argue significantly that DeCSS is > part of a RE > > effort. > > > > Arguing that DVDs are programs and the RE was done to get them > to operate > > with OSs other than Windows becomes part of showing that the > effort *was* an > > RE effort. > > Isn't it peculiar that this should be relevant at all, considering that > any reverse engineering almost certainly happened _outside of the United > States_, and was not itself a violation of the act, since 17 USC doesn't > apply extraterritorially? Ah, but the 2600 fracas *is* in the country, and 1201(f)(3) provides a potentially very useful rescue net, owing to the fact that RE is an international country. :) > > > [some stuff about the question of what 2600's actual purpose was] > > I think that's a really important question. > > I doubt 1201(f)(3) can possibly do any good factually: "solely for the > purpose" is probably hard to show for most publishers of DeCSS (as for > the defendants in the current cases), because it is probably not true. It's a concern. However, if the issue were pressed, and the case were still lost, it might be lost simply on the motivations of 2600; by which I mean, the precedental nature of this case would be severely watered down. > > Publishers of DeCSS have a wide assortment of motivations, some of which > may include making a political statement against the DMCA or similar > laws. (In particular, many people published DeCSS _not_ to enable > piracy _or_ to enable interoperability, but because they wanted to > prevent the program from being suppressed. Some people who have > mirrored it and written about it have demonstrated that they don't really > know exactly what the program does! But their purpose in distributing > it is no less well established: in many cases, to fight censorship, and > for no specific other reason.) Possibly for purposes of 1201(f)(3), reference will have to be made to the *original* distributor of DeCSS - the reverse engineers. In which case, the distribution is legal. The language of the clause does imply this. > > I don't think you can get past that, in general, simply because so many > mirror operators have made public statements about their wide range of > purposes in distributing the code -- from "to support open source" > to "to promote piracy" to "to annoy the MPAA" to "to protest the DMCA" > to "to fight censorship in general" to "to promote the freedom of > reverse engineering and cryptographic research". (I would be surprised > if it were not possible to find each of these justifications expressed > at least once in some essay written by some mirror site operator.) > > OK, somebody's going to say "cases are between parties" and insist that > we only need to worry about public statements _by 2600 staff_ that > indicate what their goals were (because they are the only people > actually still accused in court of violating the DMCA). > > Even if this were the only thing to worry about, can anyone prove that > _2600_ published a copy of DeCSS for the sole purpose of promoting > the development of players for minority operating systems? This is a > big task and a far-fetched claim in the context of a very public > mirroring campaign about which _2600_ and its supporters have written > a great deal. :-) What we need to know is: who first posted DeCSS to 2600? It was not the owner of the site I think. > > I just don't want anyone to get carried away with this exception and > neglect the phrase "solely for the purpose" here; although this > exception provides _a possible defense_ for some purpose publishing > DeCSS, it is important to consider whether that defense is really > applicable to real-world defendants, who are hand-picked for that > role by plaintiffs' lawyers. It's interesting: if we say DeCSS is an RE tool (and I do), and it's original intention in being distributed was as such, then this is okay; but subsequent distribution becomes illegal depending on what you say as you're doing it. This sounds a lot like a 1st Amendment problem to me. *If* the original circulation is legal, it seems to me it should be arguable that subsequent circulation, regardless of statements of the circulator, should be legal, because there is no other criminal act - no circumvention and no copyright infringement and no piracy. Even the other defendants would have been guiltless by this reckoning (I'm aware they said some pretty inflammatory things). 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 Sun Apr 16 22:53:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04286 for dvd-discuss-outgoing; Sun, 16 Apr 2000 22:53:30 -0400 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 WAA04283 for ; Sun, 16 Apr 2000 22:53:29 -0400 Received: from bugbug (max01-43.suba.com [206.69.121.235]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA15186 for ; Sun, 16 Apr 2000 21:53:26 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 21:52:44 -0500 Message-ID: <000701bfa818$01551d60$c47945ce@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: <4.2.2.20000416212922.00d23b00@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 Wendy wrote: > > > >Having said that, I have to point out that DeCSS is never involved in the > >interoperability scenario; it is just the program used to > circumvent access > >control in an RE effort to create interoperability between two > programs, one > >of which in my understanding is the DVD, the other being an OS. > > This is still a sticker. The RE'ing circumventer can only be > distributed to help others in developing interoperating > programs. However, since open source development presumes that > anyone who > uses a program can also be a developer, it does open the argument that > DeCSS distribution via the 2600.com website was an invitation to > others to > join the development of an open source DVD player. Only by experimenting > with the half-formed tools and the intermediate steps could > others help to > build from them. This open source thing, in re to the RE exemption, is becoming more and more significant for the argument. That is, 1201 seems definitely in the vagueness of its language to come down on the side of proprietary business models - not surprising since it was birthed by the lobby of an industry more proprietary even than MS. This proprietary bent seems to be in the law's apparent characterization of RE as something different from normal programming, and then also perhaps in 1201(f)(3) - I mean, if DeCSS were proprietary, there would be no problem. Hm, except that open source does not really mean not proprietary, but rather licensed in an open way. Important. Pressing an RE argument could well lead to quoting the GPL in court. (I *do* have the license right, don't I?) I'm writing a little essay on this; I'm hoping to have a rough draft done in a couple days, at which time I'll post to the list and request feedback. sparky > > Thoughts, at least... and more encouraging than the language in > the Senate > Report. > > > --Wendy > Wendy Seltzer -- wendy@seltzer.com > Fellow, Berkman Center for Internet & Society at Harvard Law School > http://cyber.law.harvard.edu/seltzer.html > > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 16 23:01:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA04624 for dvd-discuss-outgoing; Sun, 16 Apr 2000 23:01:16 -0400 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 XAA04617 for ; Sun, 16 Apr 2000 23:01:15 -0400 Received: from vaio ([209.138.16.201]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id XAA24232 for ; Sun, 16 Apr 2000 23:01:13 -0400 (EDT) Message-ID: <003901bfa818$e7899c20$f45ffea9@vaio> From: "Ernest Miller" To: References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 22:59:09 -0400 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: Wendy Seltzer To: Sent: Sunday, April 16, 2000 10:28 PM Subject: RE: [dvd-discuss] interoperability (RE redux) > If I want to write WordClone, the exception seems plainly to say that I can > circumvent access controls on Windows to see the hooks for an undocumented > file save function, and that I can circumvent access controls on Word to > learn about its file formats. Can I instead circumvent the access controls > on a Word document to get at the file format? Could depend whether it's > seen as "mutually to use the information exchanged" or circumventing an > independent access/copy control. I'd be willing to argue that an "access > control" that works by allowing all users of Word, but no users of > WordClone, to read and use the document is ripe for RE to permit "exchange > [of] information." > > In any case, if the writer of the access-controlled Word doc put a macro > into it, and I want WordClone to interoperate with that macro, sorry excuse > for a program that it is, I'd say the RE exception applies in full force, > even if I happen to gain access to the document text as well as the macro > while I circumvent. From earlier discussions the elements on a DVD look > more like the macro than like a textfile -- only after the files are > processed with the DVD's instructions do they come out as a movie. To > write a movie player, then, I need access to those instructions. > > The fact that Word didn't want me interoperating with its files doesn't > alone give the files protection, any more than Sony or Sega can say the > same about their videogames. Absolutely. This is the argument we need to make. Reductio ad absurdum. If the judge accepts the interpretation of the MPAA, then Microsoft will be free to implement "access" controls into its file formats...and thereby prevent anyone from creating an interoperable program, thanks to 1201. Certainly, 1201 shouldn't be interpreted this way. > This is still a sticker. The RE'ing circumventer can only be > distributed to help others in developing interoperating > programs. However, since open source development presumes that anyone who > uses a program can also be a developer, it does open the argument that > DeCSS distribution via the 2600.com website was an invitation to others to > join the development of an open source DVD player. Only by experimenting > with the half-formed tools and the intermediate steps could others help to > build from them. In order to make any RE argument work, we are going to have to do a lot of explaining about the Open Source development model. Obviously, Congress did not consider this model, but I believe we can stretch the actual language of the statute to encompass it. We will likely need some testimony from Open Source experts (i.e., Red Hat execs, ESR, Bruce Perens) and a good deal of luck to explain it to the judges so that they will understand. Perhaps someone can start to put together this argument. Ernie Miller From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 00:21:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07469 for dvd-discuss-outgoing; Mon, 17 Apr 2000 00:21:50 -0400 Received: from hotmail.com (f57.law8.hotmail.com [216.33.241.57]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA07466 for ; Mon, 17 Apr 2000 00:21:48 -0400 Received: (qmail 38382 invoked by uid 0); 17 Apr 2000 04:21:16 -0000 Message-ID: <20000417042116.38381.qmail@hotmail.com> Received: from 63.205.56.99 by www.hotmail.com with HTTP; Sun, 16 Apr 2000 21:21:16 PDT X-Originating-IP: [63.205.56.99] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Mon, 17 Apr 2000 04:21:16 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 Maybe it would help to think of the player as a program. A program is a routine, comprised of a function or functions, that does something. In this case, the DVD player is a program that reads data, DVD, and creates a picture output. Doesn't matter if this is software or hardware. Thus, DeCSS was created to provide interoperability to other OS's. Richard >Think about interroperability between data formats. Is a file >written by >MS Word interoperabile with Wordperfect or Applix or >whatever? Or perhaps >more similar to DVD. Can a floppy written on >one system be used on some >other system? In other words, are the >floppy formats interoperabile with >each other? But before you say a >floppy isn't a program, remember the >interoperability is really >between the two OSes reading/writing to/from >the floppy. What you're thinking here is compatability not interoperability. So even if they argue that this is not interoperability, you could also use compatability for different OS's. >And I think we need to be prepared for a DVD to be ruled a non->program. It >might be obvious to us, but perhaps not the the Judge. >-- >Jim Bauer, jfbauer@home.com ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 00:47:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08459 for dvd-discuss-outgoing; Mon, 17 Apr 2000 00:47:49 -0400 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 AAA08456 for ; Mon, 17 Apr 2000 00:47:48 -0400 Received: from bugbug (max01-44.suba.com [206.69.121.236]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA18008 for ; Sun, 16 Apr 2000 23:47:45 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 16 Apr 2000 23:47:03 -0500 Message-ID: <000001bfa827$f9c52120$ec7945ce@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 In-Reply-To: <20000417042116.38381.qmail@hotmail.com> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard wrote: > > Maybe it would help to think of the player as a program. A program is a > routine, comprised of a function or functions, that does > something. In this > case, the DVD player is a program that reads data, DVD, and creates a > picture output. Doesn't matter if this is software or hardware. Thus, > DeCSS was created to provide interoperability to other OS's. > > Richard As far as my understanding goes, the DVD (the disk) is the player itself - that is, it contains the playing program. The licensed hardware player seems to operate more as a platform; these hardware players may even be qualifiable as "computers" due to the components inside them (RAM, processors); meanwhile, each movie is incorporated into its own separately tailored player program, because the different qualities of each movie require special programmatic attention. In other words, the DVD and the playing program are one and the same, more or less, and there is no doubt that the player is a program. The question insofar as inoperability is concerned is to find the interoperating programs. If there were nothing on the DVD but the movie data which is player, and no instructions for playing, then the RE exemption would absolutely NOT apply to DeCSS. DeCSS could be said to provide interoperability, but only in that it was made as part of a general RE effort. Literally providing interoperability is not something that DeCSS does. It just breaks CSS. > > > >Think about interroperability between data formats. Is a file > >written by > >MS Word interoperabile with Wordperfect or Applix or >whatever? > Or perhaps > >more similar to DVD. Can a floppy written on >one system be > used on some > >other system? In other words, are the >floppy formats > interoperabile with > >each other? But before you say a >floppy isn't a program, remember the > >interoperability is really >between the two OSes reading/writing to/from > >the floppy. > > What you're thinking here is compatability not interoperability. > So even if > they argue that this is not interoperability, you could also use > compatability for different OS's. No, there is no exemption for compatibility, only for interoperability. To the extent that compatibility =! interoperability, it is of no use to us. sparky > > >And I think we need to be prepared for a DVD to be ruled a > non->program. It > >might be obvious to us, but perhaps not the the Judge. > >-- > >Jim Bauer, jfbauer@home.com > > > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 01:31:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA09565 for dvd-discuss-outgoing; Mon, 17 Apr 2000 01:31:54 -0400 Received: from hotmail.com (f43.law8.hotmail.com [216.33.241.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA09562 for ; Mon, 17 Apr 2000 01:31:53 -0400 Received: (qmail 58629 invoked by uid 0); 17 Apr 2000 05:31:22 -0000 Message-ID: <20000417053122.58628.qmail@hotmail.com> Received: from 63.205.56.99 by www.hotmail.com with HTTP; Sun, 16 Apr 2000 22:31:22 PDT X-Originating-IP: [63.205.56.99] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Mon, 17 Apr 2000 05:31:22 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 DVD's are not programs. They are data that can be encrypted. Note, not all DVD's are encrypted with CSS. >As far as my understanding goes, the DVD (the disk) is the player >itself - >that is, it contains the playing program. The licensed >hardware player >seems to operate more as a platform; these hardware >players may even be >qualifiable as "computers" due to the components >inside them (RAM, >processors); meanwhile, each movie is incorporated >into its own separately >tailored player program, because the >different qualities of each movie >require special programmatic >attention. In other words, the DVD and the >playing program are one >and the same, more or less, and there is no doubt >that the player is >a program. The question insofar as inoperability is >concerned is to >find the interoperating programs. If there were nothing on >the DVD >but the movie data which is player, and no instructions for >playing, >then the RE exemption would absolutely NOT apply to DeCSS. No, the player is the program. The DVD just provides an interface. Just because each DVD looks different when played in a DVD player is not because they are different programs, but they have different interfaces. When you look at a DVD's contents on a computer, you must use the UDF filesystem to view them. The contents you see are .vob files, which are the movies compressed and encrypted and several other files that designate what background to use, where to place selections and other miscellaneous features, ie. playing a certain scene when proceding to the next menu selection. All this is is data for a layout scheme. >DeCSS could be said to provide interoperability, but only in that it >was >made as part of a general RE effort. Literally providing >interoperability >is not something that DeCSS does. It just breaks >CSS. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 09:57:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA23197 for dvd-discuss-outgoing; Mon, 17 Apr 2000 09:57:24 -0400 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 JAA23194 for ; Mon, 17 Apr 2000 09:57:23 -0400 Received: from travel-net.com (trj64.travel-net.com [207.176.160.64]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id JAA29745 for ; Mon, 17 Apr 2000 09:57:52 -0400 Message-ID: <38FB183B.6050100@travel-net.com> Date: Mon, 17 Apr 2000 09:57:15 -0400 From: Dan Steinberg Organization: Synthesis User-Agent: Mozilla/5.0 (Windows; N; Win98; en-US; m14) Netscape6/6.0b1 X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ernest Miller wrote: > ----- Original Message ----- > From: Wendy Seltzer > To: > Sent: Sunday, April 16, 2000 10:28 PM > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > > > If I want to write WordClone, the exception seems plainly to say that I > can > > circumvent access controls on Windows to see the hooks for an undocumented > > file save function, and that I can circumvent access controls on Word to > > learn about its file formats. Can I instead circumvent the access > controls > > on a Word document to get at the file format? Could depend whether it's > > seen as "mutually to use the information exchanged" or circumventing an > > independent access/copy control. I'd be willing to argue that an "access > > control" that works by allowing all users of Word, but no users of > > WordClone, to read and use the document is ripe for RE to permit > "exchange > > [of] information." > > > > In any case, if the writer of the access-controlled Word doc put a macro > > into it, and I want WordClone to interoperate with that macro, sorry > excuse > > for a program that it is, I'd say the RE exception applies in full force, > > even if I happen to gain access to the document text as well as the macro > > while I circumvent. From earlier discussions the elements on a DVD look > > more like the macro than like a textfile -- only after the files are > > processed with the DVD's instructions do they come out as a movie. To > > write a movie player, then, I need access to those instructions. > > > > The fact that Word didn't want me interoperating with its files doesn't > > alone give the files protection, any more than Sony or Sega can say the > > same about their videogames. > > Absolutely. This is the argument we need to make. Reductio ad absurdum. > If the judge accepts the interpretation of the MPAA, then Microsoft will be > free to implement "access" controls into its file formats...and thereby > prevent anyone from creating an interoperable program, thanks to 1201. > Certainly, 1201 shouldn't be interpreted this way. Ummmmmmmmm..... I would be very afraid of making this argument. the main reason I would be afraid is I think its a losing argument. Why cant Microsoft (or some other vendor) institute access controls into its file format? wer all those early crude copy-protection schemes for floppies illegal? I dont recall anyone every trying to prove that in court? The argements were all about the legality of circumventing the access controls. Other than the current Microsoft/DoJ anti-trust concerns, Id be hard pressed to find a legal argument to prevent Microsoft from implementing access controls into its' file formats tomorrow. This is in general a matter between a vendor and a consumer. The consumer is free to shop elsewhere for his/her software if they dont like the terms/conditions on the software. Substitute another company for Microsoft and you have have absolutely no reason. Im feeling monday-morning brain dead but Im sure I have some old software lying around that has (primitive) access control built into the file formats. To put the focus back on this, I believe we are talking about the circumvention of access controls, not the right of the vendor implement them in the first place. Am I right? > > > > Ernie Miller > > > > -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 10:02:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA23476 for dvd-discuss-outgoing; Mon, 17 Apr 2000 10:02:54 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA23473 for ; Mon, 17 Apr 2000 10:02:49 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12hC6v-0000V0-00; Mon, 17 Apr 2000 16:02:45 +0200 Received: from localhost by sites.inka.de with local id 12hC6v-0001v7-00; Mon, 17 Apr 2000 16:02:45 +0200 Date: Mon, 17 Apr 2000 16:02:45 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417160245.E30189@inka.de> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <38FB183B.6050100@travel-net.com>; from dstein@travel-net.com on Mon, Apr 17, 2000 at 09:57:15AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 09:57:15AM -0400, Dan Steinberg wrote: > > > > Absolutely. This is the argument we need to make. Reductio ad absurdum. > > If the judge accepts the interpretation of the MPAA, then Microsoft will be > > free to implement "access" controls into its file formats...and thereby > > prevent anyone from creating an interoperable program, thanks to 1201. > > Certainly, 1201 shouldn't be interpreted this way. > > Ummmmmmmmm..... > I would be very afraid of making this argument. the main reason I would > be afraid is I think its a losing argument. Why cant Microsoft (or > some other vendor) institute access controls into its file format? wer > all those early crude copy-protection schemes for floppies illegal? I > dont recall anyone every trying to prove that in court? The argements > were all about the legality of circumventing the access controls. I think that's the argument that was made. Of course Microsoft is free to implement access controls, but if it is illegal to circumvent them it becomes illegal rather than just difficult to make interopable programs. Sham -- "No dictator, no invader, can hold an imprisoned population by force of arms forever. There is no greater power in the universe than the need for freedom. Against that power, governments and tyrants and armies cannot stand." (Ambassdor G'Kar, Babylon 5) http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 10:14:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA24025 for dvd-discuss-outgoing; Mon, 17 Apr 2000 10:14:56 -0400 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 KAA24022 for ; Mon, 17 Apr 2000 10:14:55 -0400 Received: from 25915 (227.7.252.64.snet.net [64.252.7.227]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id KAA25904 for ; Mon, 17 Apr 2000 10:14:54 -0400 (EDT) Message-ID: <003b01bfa877$5402afa0$d559fea9@25915> From: "Ernest Miller" To: References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Mon, 17 Apr 2000 10:15:04 -0400 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: Dan Steinberg To: Sent: Monday, April 17, 2000 9:57 AM Subject: Re: [dvd-discuss] interoperability (RE redux) > > > > Absolutely. This is the argument we need to make. Reductio ad absurdum. > > If the judge accepts the interpretation of the MPAA, then Microsoft will be > > free to implement "access" controls into its file formats...and thereby > > prevent anyone from creating an interoperable program, thanks to 1201. > > Certainly, 1201 shouldn't be interpreted this way. > > Ummmmmmmmm..... > I would be very afraid of making this argument. the main reason I would > be afraid is I think its a losing argument. Why cant Microsoft (or > some other vendor) institute access controls into its file format? wer > all those early crude copy-protection schemes for floppies illegal? I > dont recall anyone every trying to prove that in court? The argements > were all about the legality of circumventing the access controls. > > Other than the current Microsoft/DoJ anti-trust concerns, Id be hard > pressed to find a legal argument to prevent Microsoft from implementing > access controls into its' file formats tomorrow. This is in general a > matter between a vendor and a consumer. The consumer is free to shop > elsewhere for his/her software if they dont like the terms/conditions on > the software. Substitute another company for Microsoft and you have > have absolutely no reason. Im feeling monday-morning brain dead but Im > sure I have some old software lying around that has (primitive) access > control built into the file formats. To put the focus back on this, I > believe we are talking about the circumvention of access controls, not > the right of the vendor implement them in the first place. Am I right? Microsoft could implement access controls into their file formats. This is legal, always has been. However, if I wanted to create a program that could interoperate with Microsoft's, I would have the right to circumvent the access controls in order to achieve interoperability. The MPAA's interpretation of 1201 would prevent me from reverse engineering in order to ensure interoperability. Therefore, their interpretation must be wrong. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 10:55:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25386 for dvd-discuss-outgoing; Mon, 17 Apr 2000 10:55:42 -0400 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 KAA25383 for ; Mon, 17 Apr 2000 10:55:41 -0400 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 KAA01913 for ; Mon, 17 Apr 2000 10:55:41 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA02701; Mon, 17 Apr 2000 10:55:39 -0400 (EDT) Date: Mon, 17 Apr 2000 10:55:39 -0400 (EDT) Message-Id: <200004171455.KAA02701@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <003b01bfa877$5402afa0$d559fea9@25915> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <003b01bfa877$5402afa0$d559fea9@25915> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ernest Miller writes: > Microsoft could implement access controls into their file formats. > This is legal, always has been. However, if I wanted to create a > program that could interoperate with Microsoft's, I would have the > right to circumvent the access controls in order to achieve > interoperability. The MPAA's interpretation of 1201 would prevent me > from reverse engineering in order to ensure interoperability. > Therefore, their interpretation must be wrong. Hmmm... maybe I'm going into broken-record mode here, but to reiterate a few points from prior discussion: 1) The MPAA is already using CSS not just to do copy protection (to the minimal extent that it does that), but to impose specific requirements on player manufacturers which have nothing to do with copy protection per se, such as region coding. (Region coding *may* be defensible as access control, but I doubt it. In any case, I'd love to see them stand up in court and simply have to say out loud that that's their real interest here). If movie studios can dictate to player manufacturers, that lets them do an end-run around U.S. v. Paramount, and reestablish end-to-end control of the distribution of their wares from studio to consumer. Contrast that with Congressional discussions concerning the "pay-per-view society" in the legislative history; that's not what they thought they were voting for. 2) Given the legislative history --- particularly the discussions concerning 1201(c), like Kohl's "not by ... lawyers" remark, the flat statement in the conference committee report that Persons may ... choose to implement a technological measure without vetting it through an inter-industry consultative process, or without regard to the input of affected parties. the numerous "black boxes only" statements in both houses of Congress, Senator Ashcroft's example of the PC-video card (strips off Macrovision, still legal), and the several positive references to Sony v. Universal --- it seems pretty clear that Congress never meant to allow the MPAA, or any other copyright owner or cartel of copyright owners, to dictate how players for their materials can be produced, except to restrict devices whose only real purpose is circumvention. So, once again, the MPAA's interpretation is not what Congress thought they were voting for. (Of course, one could say that they didn't know what they were voting for...). (BTW, if folks are wondering why I haven't been posting much, I've been *very* preoccupied with some stuff that came up unexpectedly --- and not just with taxes; I may wind up filing 4868's in order to deal with the other crud. Apologies to anyone whose private email may not have gotten the attention it deserved). rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 11:32:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26812 for dvd-discuss-outgoing; Mon, 17 Apr 2000 11:32:26 -0400 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 LAA26809 for ; Mon, 17 Apr 2000 11:32:26 -0400 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 LAA06901 for ; Mon, 17 Apr 2000 11:32:24 -0400 (EDT) Message-Id: <4.2.2.20000417111426.00d17130@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 17 Apr 2000 11:32:22 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <38FB183B.6050100@travel-net.com> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> 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 09:57 AM 4/17/00 -0400, dstein@travel-net.com wrote: >Ernest Miller wrote: > >>----- Original Message ----- >>From: Wendy Seltzer >> >> > The fact that Word didn't want me interoperating with its files doesn't >> > alone give the files protection, any more than Sony or Sega can say the >> > same about their videogames. >>Absolutely. This is the argument we need to make. Reductio ad absurdum. >>If the judge accepts the interpretation of the MPAA, then Microsoft will be >>free to implement "access" controls into its file formats...and thereby >>prevent anyone from creating an interoperable program, thanks to 1201. >>Certainly, 1201 shouldn't be interpreted this way. > >Ummmmmmmmm..... >I would be very afraid of making this argument. the main reason I would >be afraid is I think its a losing argument. Why cant Microsoft (or some >other vendor) institute access controls into its file format? wer all >those early crude copy-protection schemes for floppies illegal? I dont >recall anyone every trying to prove that in court? The argements were all >about the legality of circumventing the access controls. How would the vendor control the file format? Unless all Word-created files are derivative works of Word, it's not through copyright law. (The derivative works argument would make more sense if the file included libraries from the copyrighted program in which it was developed or was based on stories/elements from that program (Microstar v. Formgen 9th Cir.).) Otherwise, I'd say file format is purely functional and any copying of copyrighted material that needs to be done is fair use to access the functional elements. If it's only technological, 1201(f) seems fairly clear that if I have a legal version of Word, I can circumvent tech restrictions. If it's contract, a third party who is given a Word file isn't bound to respect the Microsoft-Microserf contract (at least not untill MS engineers a popup clickthrough to launch every time the file is accessed or tortious interference law runs amok). I don't think MS has a viable business model if Word users are prohibited by contract from sharing their documents. I don't see how you can enforce proprietary file formats for user-created data, as opposed to for its software, and 1201(f) applies to the software. What am I missing? --Wendy >Other than the current Microsoft/DoJ anti-trust concerns, Id be hard >pressed to find a legal argument to prevent Microsoft from implementing >access controls into its' file formats tomorrow. This is in general a >matter between a vendor and a consumer. The consumer is free to shop >elsewhere for his/her software if they dont like the terms/conditions on >the software. Substitute another company for Microsoft and you have have >absolutely no reason. Im feeling monday-morning brain dead but Im sure I >have some old software lying around that has (primitive) access control >built into the file formats. To put the focus back on this, I believe we >are talking about the circumvention of access controls, not the right of >the vendor implement them in the first place. Am I right? > 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 Mon Apr 17 11:36:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26960 for dvd-discuss-outgoing; Mon, 17 Apr 2000 11:36:13 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA26957 for ; Mon, 17 Apr 2000 11:36:12 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12hDZI-0004Ae-00; Mon, 17 Apr 2000 17:36:08 +0200 Received: from localhost by sites.inka.de with local id 12hDZK-0002jd-00; Mon, 17 Apr 2000 17:36:10 +0200 Date: Mon, 17 Apr 2000 17:36:10 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417173610.F30189@inka.de> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <4.2.2.20000417111426.00d17130@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.2.2.20000417111426.00d17130@law.harvard.edu>; from wendy@seltzer.com on Mon, Apr 17, 2000 at 11:32:22AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If it's contract, a third party who is given a Word file isn't bound to > respect the Microsoft-Microserf contract (at least not untill MS engineers > a popup clickthrough to launch every time the file is accessed or tortious > interference law runs amok). Enforcing a clickthrough as you describe is impossible. Microsoft may control the Operating system on which Word runs, but a Word file can be accessed (meaning read byte for byte) on another operating system with no provision for displayign a clickthrough. Sham -- "No dictator, no invader, can hold an imprisoned population by force of arms forever. There is no greater power in the universe than the need for freedom. Against that power, governments and tyrants and armies cannot stand." (Ambassdor G'Kar, Babylon 5) http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 13:19:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30230 for dvd-discuss-outgoing; Mon, 17 Apr 2000 13:19:16 -0400 Received: from dial215.roadrunner.com (dial215.cybermesa.com [209.12.75.215]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30227 for ; Mon, 17 Apr 2000 13:19:14 -0400 Received: (from paul@localhost) by dial215.roadrunner.com (8.8.7/8.8.7) id LAA01679 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 11:23:07 -0600 Date: Mon, 17 Apr 2000 11:23:05 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417112305.A1577@localhost> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <38FB183B.6050100@travel-net.com>; from dstein@travel-net.com on Mon, Apr 17, 2000 at 09:57:15AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 09:57:15AM -0400, Dan Steinberg wrote: [ ... ] > Ummmmmmmmm..... > I would be very afraid of making this argument. the main reason I would > be afraid is I think its a losing argument. Why cant Microsoft (or > some other vendor) institute access controls into its file format? wer > all those early crude copy-protection schemes for floppies illegal? Access control != copy control. > I > dont recall anyone every trying to prove that in court? The argements > were all about the legality of circumventing the access controls. "Copy control" on floppies may have had the nasty side-effect of destroying disk drives, but aside from that it didn't prevent one from accessing in-band/normal data on the disk. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 13:54:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31647 for dvd-discuss-outgoing; Mon, 17 Apr 2000 13:54:03 -0400 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 NAA31644 for ; Mon, 17 Apr 2000 13:54:02 -0400 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 NAA24354 for ; Mon, 17 Apr 2000 13:54:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA03484; Mon, 17 Apr 2000 13:54:00 -0400 (EDT) Date: Mon, 17 Apr 2000 13:54:00 -0400 (EDT) Message-Id: <200004171754.NAA03484@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <4.2.2.20000417111426.00d17130@law.harvard.edu> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <4.2.2.20000417111426.00d17130@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 don't see how you can enforce proprietary file formats for user-created > data, as opposed to for its software, and 1201(f) applies to the software. > > What am I missing? > --Wendy I'm not sure myself, but here's one scenario: Microsoft puts some kind of copy control, or something they call a copy control, into the Word data formats. They release documents of their own (say, manuals for other products) with the copy controls on. They also make it the default for users of the software --- after all, who wouldn't want to be protected? So, in order to make an interoperable word processor, you have to break the copy protection --- but Microsoft can then sue, claiming that you're distributing a circumvention tool which could be used to make illegal copies of protected documents, including their own. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 13:54:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31681 for dvd-discuss-outgoing; Mon, 17 Apr 2000 13:54:29 -0400 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 NAA31678 for ; Mon, 17 Apr 2000 13:54:27 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA17510 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 12:54:25 -0500 Date: Mon, 17 Apr 2000 12:54:25 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417125425.A17452@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <611C0CE12596D311B466009027D5E7591E4C4E@c3100.clearway.com> <000501bfa813$f67263c0$c47945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <000501bfa813$f67263c0$c47945ce@bugbug.WinNATDomain>; from sparky@suba.com on Sun, Apr 16, 2000 at 09:23:48PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Apr 16, 2000 at 09:23:48PM -0500, sparky wrote: > > Leland wrote: > > > > The short answer is yes, some OSs can read different formats on media. > > There are caveats relating different hardware on different machines, > > and file system data may not be possible for another OS to interpret. > > > > Interpreting data on a DVD as a sequence of instructions for producing > > the visual image opens up a significant discussion because the player > > really becomes a platform and the CPU or operating system becomes a > > secondary issue. This is one of those distinctions that IMHO needs to be > > made early in the argument (with a run of the argument for both "DVD as > > program" and "DVD as data"). > > In fact I think this may be more the case than less. I have read in the last > couple of days (I forget where) that licensed hardware "players" have > various computer components inside them, like RAM and even a *processor* in > order to take the weight of running the movie off the host computer. > (Otherwise, performance may degrade, etc, just generally need a better > computer in order to really enjoy the movie.) > > Also, and this is again something Dana would be better qualified to answer, > I think that the fact that each DVD movie is individually programmed, in > order to take advantage of each movie's specific characteristics/design, > implies that, whatever the licensed hardware player is contributing to the > playing of the movie, it's probably pretty generic, as it's got to apply to > all DVDs. The hardware player sounds more and more like a fancy disk drive. > Some would even call it a computer. Eric? Care to chime in? Sure :) Sounds accurate to me (from a technical angle anyway). I think the DVDs-are-programs argument might be a hard sell, because 1) the files that are CSS-scrambled are _not_ the files containing program-like content, 2) non-technical people might have a hard time believing there's programs on a DVD, and 3) the amount of non-program (data) content is vastly greater than the amount of program-like data; there may be 5GB of movie (data) and 30kB of program (IFO). Eric From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 14:05:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32077 for dvd-discuss-outgoing; Mon, 17 Apr 2000 14:05:23 -0400 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 OAA32074 for ; Mon, 17 Apr 2000 14:05:22 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id VAA15740 for ; Mon, 17 Apr 2000 21:05:20 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 17 Apr 2000 21:05:19 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <000001bfa76f$760f8400$d97945ce@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 Sun, 16 Apr 2000, sparky wrote: >> might still apply. In that case, the interroperability is not between >> the DVD and a computer running DcCSS, but between the program that >> wrote the DVD and the program that is reading the DVD. > >I think this sort of once-removed relation of the interoperating programs >might be perfectly correct technically. It might be harder to persuade >someone (the judge) legally. This impression of mine may only stem from what >I *imagined* interoperability to mean when I was reading 1201's language; I >imagined it to apply to two programs exchanging info at runtime, in other >words two programs running at the same time. This leads to a nice overbroadness argument by assuming that incompatible file formats are effective protection and showing that it is not necessary for two programs to run at the same time for one of them to read a file written by another. A ban on 'circumventing' the file format also neatly contradicts the spirit of 1201's RE exceptions. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 14:23:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32606 for dvd-discuss-outgoing; Mon, 17 Apr 2000 14:23:12 -0400 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 OAA32603 for ; Mon, 17 Apr 2000 14:23:11 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.8.8/8.8.0) with ESMTP id VAA17503 for ; Mon, 17 Apr 2000 21:23:09 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 17 Apr 2000 21:23:09 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.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, 16 Apr 2000, Leland Ray wrote: >That is just not true. RE is very common because documentation >is inadequate or the software under development needs to integrate >with other software in a unique manner. In practice, it is >difficult or impossible to separate RE techniques from other >implementation techniques in any major software development effort. Which brings out on interesting point: RE exists because not everything is documented. It has been included in 1201 because ability to interoperate in the absence of documentation is very well in tune with the advancement of knowledge views generally held to be the basis of copyright and intellectual property. So why carve out substantial aids to interoperability in case of distribution media for intellectual property, like in 1201 where RE is limited to software? This is of course one reason why 1201 is now called paracopyright instead of copyright. It also lets us view 1201 as a legitimization of security by obscurity - if RE is made illegal in some scenario, lack of documetation leads to either lack of knowledge or liability. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 14:53:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00951 for dvd-discuss-outgoing; Mon, 17 Apr 2000 14:53:37 -0400 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 OAA00948 for ; Mon, 17 Apr 2000 14:53:37 -0400 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 OAA19539 for ; Mon, 17 Apr 2000 14:53:36 -0400 (EDT) Message-Id: <4.2.2.20000417144119.00d23b20@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 17 Apr 2000 14:53:40 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <200004171754.NAA03484@soggy-fibers.ai.mit.edu> References: <4.2.2.20000417111426.00d17130@law.harvard.edu> <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <4.2.2.20000417111426.00d17130@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 01:54 PM 4/17/00 -0400, rst@ai.mit.edu wrote: >Wendy Seltzer writes: > > I don't see how you can enforce proprietary file formats for user-created > > data, as opposed to for its software, and 1201(f) applies to the software. > > > > What am I missing? > > --Wendy > >I'm not sure myself, but here's one scenario: > >Microsoft puts some kind of copy control, or something they call a >copy control, into the Word data formats. They release documents of >their own (say, manuals for other products) with the copy controls on. >They also make it the default for users of the software --- after all, >who wouldn't want to be protected? > >So, in order to make an interoperable word processor, you have to >break the copy protection --- but Microsoft can then sue, claiming >that you're distributing a circumvention tool which could be used to >make illegal copies of protected documents, including their own. >rst Or it's Microsoft's own fault for using the same overbroad access control to protect their manuals and the works of users who forget their passwords, users who don't want the protection but get stuck with it anyhow, and users who will reprint uncopyrightable materials. Just as a contract is construed against the drafter, I'd say an access control should be construed against its implementer, who should bear the risk that the whole scheme will be found invalid if it tries to grab too much. Or, each of the attempts to go back in and take something MS couldn't protect by copyright will be a legitimate use of the circumventing device, simply rendering the access control useless by making the means to circumvent ubiquitous. Do we have any added ammunition for the "controlling too much" argument? -- protects movies out of copyright, forces advertisements, covers uncopyrightable elements, breaks fair use, works at least in tandem with market manipulation, tying, and monopolization. --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 Mon Apr 17 14:54:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00971 for dvd-discuss-outgoing; Mon, 17 Apr 2000 14:54:13 -0400 Received: from dial245.roadrunner.com (dial245.cybermesa.com [209.12.75.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA00968 for ; Mon, 17 Apr 2000 14:54:10 -0400 Received: (from paul@localhost) by dial245.roadrunner.com (8.8.7/8.8.7) id MAA02474 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 12:58:06 -0600 Date: Mon, 17 Apr 2000 12:58:04 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417125803.A2387@localhost> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <4.2.2.20000417111426.00d17130@law.harvard.edu> <200004171754.NAA03484@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200004171754.NAA03484@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Apr 17, 2000 at 01:54:00PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Trying not to be obtuse here. Even though 1201(f)(2) provides an exception to both (a)(2) and (b), I don't see how considering exceptions to (b) rather than (a)(2) helps much in analyzing (f)(2)'s relevance as a defense in the NY and CT cases. One might need a 1201(b) circumvention device to build an interoperating program, but distributing type-(b) circumvention along with the finished program would in most (but not all?) circumstances not be needed to make the program function. [ Aside: if the engineers of the original product instituted copy control rather than access control on the original program or data, there would seem to be a strong incentive for them to make operation of the program dependent on doing some duplication --- duplication is probably what they were trying to avoid. ] On the other hand, 1201(a) circumvention could easily be need to both do the reverse engineering and to make the cloned program run. Paul Fenimore On Mon, Apr 17, 2000 at 01:54:00PM -0400, Robert S. Thau wrote: > Wendy Seltzer writes: > > I don't see how you can enforce proprietary file formats for user-created > > data, as opposed to for its software, and 1201(f) applies to the software. > > > > What am I missing? > > --Wendy > > I'm not sure myself, but here's one scenario: > > Microsoft puts some kind of copy control, or something they call a > copy control, into the Word data formats. They release documents of > their own (say, manuals for other products) with the copy controls on. > They also make it the default for users of the software --- after all, > who wouldn't want to be protected? > > So, in order to make an interoperable word processor, you have to > break the copy protection --- but Microsoft can then sue, claiming > that you're distributing a circumvention tool which could be used to > make illegal copies of protected documents, including their own. > > rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 14:55:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01120 for dvd-discuss-outgoing; Mon, 17 Apr 2000 14:55:42 -0400 Received: from toad.com (toad.com [140.174.2.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01116 for ; Mon, 17 Apr 2000 14:55:41 -0400 Received: from [204.253.162.23] (random-mac.eff.org [204.253.162.23]) by toad.com (8.7.5/8.7.3) with ESMTP id LAA26622 for ; Mon, 17 Apr 2000 11:55:36 -0700 (PDT) Date: Mon, 17 Apr 2000 11:55:36 -0700 (PDT) X-Sender: hilgle2@dons.usfca.edu Message-Id: In-Reply-To: References: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: dvd-discuss@eon.law.harvard.edu From: Les Hilger III Subject: [dvd-discuss] Good Reading Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I know not everyone has easy access to Westlaw or Lexis but I wanted to provide 2 documents which I think are at least helpful in understanding what other law professionals are saying about the DMCA Pamela Samuelson, Why the Anti-Circumvention Regs Need To Be Revised, 14 Berkeley Tech. L. J. 519 - This a very informative piece which talks about the intended purpose of the DMCA, breaks it down into sections, and ultimately shows the DMCA for what it is-bad law David Nimmer, A Riff on Fair Use in the DMCA 148 U. Pa. L. Rev. 673 Just found it- and its long but found that it had some pursuasive case studies that show how overly expansive the DMCA is when its put in real life situations. If these articles have already been circulated within the list I apologize. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 15:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01434 for dvd-discuss-outgoing; Mon, 17 Apr 2000 15:07:12 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01431 for ; Mon, 17 Apr 2000 15:07:11 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id PAA03931 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 15:06:24 -0400 (EDT) Date: Mon, 17 Apr 2000 15:06:24 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Good Reading Message-ID: <20000417150624.A3181@ils.unc.edu> References: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from hilgle2@usfca.edu on Mon, Apr 17, 2000 at 11:55:36AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 11:55:36AM -0700, Les Hilger III wrote: > Pamela Samuelson, Why the Anti-Circumvention Regs Need To Be Revised, > 14 Berkeley Tech. L. J. 519 > - This a very informative piece which talks about the intended purpose of > the DMCA, breaks it down into sections, and ultimately shows the DMCA for > what it is-bad law Online at http://www.sims.berkeley.edu/~pam/papers.html (MS Word or HTML formats). Recommended. > David Nimmer, A Riff on Fair Use in the DMCA > 148 U. Pa. L. Rev. 673 > Just found it- and its long but found that it had some pursuasive case > studies that show how overly expansive the DMCA is when its put in real > life situations. I didn't see this freely published, but Nimmer's bio is at http://www.irell.com/attorneys/ShowLawyer.asp?AID=118 -- Greg Newby From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 15:22:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01922 for dvd-discuss-outgoing; Mon, 17 Apr 2000 15:22:46 -0400 Received: from dial197.roadrunner.com (dial197.cybermesa.com [209.12.75.197]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01919 for ; Mon, 17 Apr 2000 15:22:43 -0400 Received: (from paul@localhost) by dial197.roadrunner.com (8.8.7/8.8.7) id NAA02912 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 13:26:43 -0600 Date: Mon, 17 Apr 2000 13:26:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000417132641.A2780@localhost> References: <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <4.2.2.20000417111426.00d17130@law.harvard.edu> <200004171754.NAA03484@soggy-fibers.ai.mit.edu> <20000417125803.A2387@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000417125803.A2387@localhost>; from fenimore@roadrunner.com on Mon, Apr 17, 2000 at 12:58:04PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 12:58:04PM -0600, Paul Fenimore wrote: > [ Aside: if the engineers of the original product instituted copy > control rather than access control on the original program or data, > there would seem to be a strong incentive for them to make operation > of the program dependent on doing some duplication --- duplication > is probably what they were trying to avoid. ] [ Aside: if the engineers of the original product instituted copy control rather than access control on the original program or data, there would seem to be a strong incentive for them to make operation of the program INdependent of doing some duplication --- duplication ^^ is probably what they were trying to avoid. ] From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 15:24:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02062 for dvd-discuss-outgoing; Mon, 17 Apr 2000 15:24:31 -0400 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 PAA02058 for ; Mon, 17 Apr 2000 15:24:31 -0400 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 PAA04940 for ; Mon, 17 Apr 2000 15:24:30 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA03988; Mon, 17 Apr 2000 15:24:29 -0400 (EDT) Date: Mon, 17 Apr 2000 15:24:29 -0400 (EDT) Message-Id: <200004171924.PAA03988@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <4.2.2.20000417144119.00d23b20@law.harvard.edu> References: <4.2.2.20000417111426.00d17130@law.harvard.edu> <200004160353.XAA14402@emperor.hwrd1.md.home.com> <4.2.2.20000416212922.00d23b00@law.harvard.edu> <003901bfa818$e7899c20$f45ffea9@vaio> <38FB183B.6050100@travel-net.com> <200004171754.NAA03484@soggy-fibers.ai.mit.edu> <4.2.2.20000417144119.00d23b20@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > At 01:54 PM 4/17/00 -0400, rst@ai.mit.edu wrote: > >Microsoft puts some kind of copy control, or something they call a > >copy control, into the Word data formats. They release documents of > >their own (say, manuals for other products) with the copy controls on. > >They also make it the default for users of the software --- after all, > >who wouldn't want to be protected? > > > >So, in order to make an interoperable word processor, you have to > >break the copy protection --- but Microsoft can then sue, claiming > >that you're distributing a circumvention tool which could be used to > >make illegal copies of protected documents, including their own. > >rst > > Or it's Microsoft's own fault for using the same overbroad access control > to protect their manuals and the works of users who forget their passwords, > users who don't want the protection but get stuck with it anyhow... Hmm... I was trying to construct something as close as possible to the DVD case, with the serial numbers filed off: [The MPAA] puts some kind of copy control, or something they call a copy control, into the [DVD] data formats. They release [movies] of their own with the copy controls on. They also make it [available to other movie studios] --- after all, who wouldn't want to be protected? So, in order to make an interoperable [DVD viewer], you have to break the copy protection --- but [the MPAA] can then sue, claiming that you're distributing a circumvention tool which could be used to make illegal copies of protected [movies], including their own. It looks like I didn't succeed --- the two obvious differences are protection being applied to documents of people who didn't ask for it (the "default" bit), and viewers vs. editors in the second paragraph. Back to the drawing board... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 17 15:28:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02322 for dvd-discuss-outgoing; Mon, 17 Apr 2000 15:28:05 -0400 Received: from dial143.roadrunner.com (dial143.cybermesa.com [209.12.75.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA02319 for ; Mon, 17 Apr 2000 15:28:03 -0400 Received: (from paul@localhost) by dial143.roadrunner.com (8.8.7/8.8.7) id NAA03059 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Apr 2000 13:31:57 -0600 Date: Mon, 17 Apr 2000 13:31:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Good Reading Message-ID: <20000417133156.B2780@localhost> References: <611C0CE12596D311B466009027D5E7591E4C4A@c3100.clearway.com> <20000417150624.A3181@ils.unc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000417150624.A3181@ils.unc.edu>; from gbnewby@ils.unc.edu on Mon, Apr 17, 2000 at 03:06:24PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 03:06:24PM -0400, Greg Newby wrote: > On Mon, Apr 17, 2000 at 11:55:36AM -0700, Les Hilger III wrote: [ ... ] > > David Nimmer, A Riff on Fair Use in the DMCA > > 148 U. Pa. L. Rev. 673 > > Just found it- and its long but found that it had some pursuasive case > > studies that show how overly expansive the DMCA is when its put in real > > life situations. > > I didn't see this freely published, but Nimmer's bio > is at http://www.irell.com/attorneys/ShowLawyer.asp?AID=118 The only way I found to get a copy was by visiting the library. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 00:29:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA19729 for dvd-discuss-outgoing; Tue, 18 Apr 2000 00:29:35 -0400 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 AAA19726 for ; Tue, 18 Apr 2000 00:29:33 -0400 Received: from bugbug (max01-58.suba.com [206.69.121.250]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA28985 for ; Mon, 17 Apr 2000 23:29:24 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Mon, 17 Apr 2000 23:28:40 -0500 Message-ID: <000001bfa8ee$93a7e540$fa7945ce@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: <20000417125425.A17452@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 Eric wrote: > > > > Also, and this is again something Dana would be better > qualified to answer, > > I think that the fact that each DVD movie is individually programmed, in > > order to take advantage of each movie's specific characteristics/design, > > implies that, whatever the licensed hardware player is > contributing to the > > playing of the movie, it's probably pretty generic, as it's got > to apply to > > all DVDs. The hardware player sounds more and more like a fancy > disk drive. > > Some would even call it a computer. Eric? Care to chime in? > > Sure :) > > Sounds accurate to me (from a technical angle anyway). > > I think the DVDs-are-programs argument might be a hard sell, because > 1) the files that are CSS-scrambled are _not_ the files containing > program-like content, > 2) non-technical people might have a hard time believing there's programs > on a DVD, and > 3) the amount of non-program (data) content is vastly greater than the > amount of program-like data; there may be 5GB of movie (data) and 30kB of > program (IFO). > > Eric > Hm. 3) No offense, but ca-mon. The program just syncs up the playing, it doesn't have to be of comparable size as the movie to play it. 2) I think I disagree with you here. If the programs really *are* on the disc, we only have to show them the source. "There's your program." 1) The kicker. This and Richard's comment make it sound like no RE defense is feasible; there is no encryption/protection of the actual player program. But I have a problem with this. The LiViD effort *was* RE; is it suddenly not RE simply because the DVD CCA wouldn't give CSS licenses for open source players? Point being: to make a Linux (or other OS) player, the player must decrypt CSS. The only ways for this to be done is to get a license from the DVD CCA, which won't happen because Linux is open source ("DMCA Mistake No. 56,802: allowing a private organization to control a standard for copy protecting leads to monopoly"), or to break CSS as part of the RE work to build a Linux player. Therefore, I feel (..feelings, woa woa..) there should be room to argue that DeCSS should still have RE considerations extended toward it. We can do this by interpreting 1201(f) in a different way from how we have been interpreting it. we have been interpreting it to mean that the circumvention of protective measures must be on one of the interoperating programs. But what if, as is our case, the protective measures exist not on the program which is RE'd, but on the data which the RE'd program reads? Yes, the RE clause was not intended to apply to creative works, or anything other than a computer program, according to the Senate Committee Report (see faq 2.9.1); but this seems to me now a clear instance of shortsightedness. If the *function* of a program is to play encrypted materials or otherwise present them, REing the program in order to create a program with identical functionality means that *that* encryption will have to be broken, regardless of whether the program itself is has a protective measure applied to it. Perhaps the approach could be taken that the data really does consist of part of the program in that the format of the data has to be completely altered in order to play it. Is the movie decrypted, then player, or the other way around? Also, I'd like to point out that I have been laboring under a misconception. Maybe others have noticed it. I have been under the impression that the interoperating programs had to include the one that was protected; I realize this is incorrect. I think though that this has been a general misconception, not just mine. Note the language of 1201(f), all. The interoperating programs only need to be the Linux OS and the *new* DVD player: "[...] a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability OF AN INDEPENDANTLY CREATED PROGRAM WITH OTHER PROGRAMS [...]" (1) - note there is no statement here that one of the interoperating programs needs to be the program with the protective measure on it. When you think about it, this makes sense, since you could RE a program in order to create a completely separate one, which will never interact with the original program. sparky From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 00:59:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA20620 for dvd-discuss-outgoing; Tue, 18 Apr 2000 00:59:46 -0400 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 AAA20617 for ; Tue, 18 Apr 2000 00:59:45 -0400 Received: from bugbug (max01-58.suba.com [206.69.121.250]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA29783 for ; Mon, 17 Apr 2000 23:59:39 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Berne Convention Date: Mon, 17 Apr 2000 23:58:58 -0500 Message-ID: <000101bfa8f2$cdf990a0$fa7945ce@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: <20000408223808.A2372@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 Does anyone have any idea what the WIPO treaty means when it says (quoted in faq 1.5.3): "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law" -for instance, what does WIPO mean by: effective tech measures? This has been an important topic of debate here, and I am curious to find out just to what extent WIPO's understanding of what they were talking about matches Congress' understanding of what it (and WIPO) was talking about. There could many points of contention. 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: Saturday, April 08, 2000 11:38 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Berne Convention > > > Article 17 of the Berne Convention says that a signatory Government > may not use the treaty as authority to "permit" regulation of "... the > circulation, presentation, or exhibition of any work ..." > > 1201 was enacted to conform the United States to the WIPO Copyright > Treaty produced by, "DIPLOMATIC CONFERENCE ON CERTAIN COPYRIGHT AND > NEIGHBORING RIGHTS QUESTIONS." > > Article 1 of the WIPO treaty says, "This Treaty shall not have any > connection with treaties other than the Berne Convention, ..." > > The Berne Convention is a bit long, so I haven't read the whole thing > yet, but this looks useful. Not only does the Congressional record > contradict the MPAA's reading of 1201, but the treaties don't seem > to be amenable either. > > Article 17 > > [Possibility of Control of Circulation, Presentation and Exhibition of > Works] > > The provisions of this Convention cannot in any way affect the right > of the Government of each country of the Union to permit, to control, > or to prohibit, by legislation or regulation, the circulation, > presentation, or exhibition of any work or production in regard to > which the competent authority may find it necessary to exercise that > right. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 08:46:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01244 for dvd-discuss-outgoing; Tue, 18 Apr 2000 08:46:02 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA01241 for ; Tue, 18 Apr 2000 08:45:59 -0400 Received: (qmail 8562 invoked by uid 502); 18 Apr 2000 12:47:52 -0000 Date: Tue, 18 Apr 2000 08:47:52 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Berne Convention Message-ID: <20000418084752.B17299@linuxpower.org> References: <20000408223808.A2372@localhost> <000101bfa8f2$cdf990a0$fa7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000101bfa8f2$cdf990a0$fa7945ce@bugbug.WinNATDomain>; from sparky on Mon, Apr 17, 2000 at 11:58:58PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Apr 17, 2000 at 11:58:58PM -0500, sparky wrote: > Does anyone have any idea what the WIPO treaty means when it says (quoted in > faq 1.5.3): > > "Contracting Parties shall provide adequate legal protection and effective > legal remedies against the circumvention of effective technological measures > that are used by authors in connection with the exercise of their rights > under this Treaty or the Berne Convention and that restrict acts, in respect > of their works, which are not authorized by the authors concerned or > permitted by law" My guess would be the common-sense interpretation - nations signing the treaty agree to provide legal teeth to technological "copyright enforcement" measures such as copy protection, etc. Awful wording, though. "technological measures that are used by authors in connection with the exercise of their rights".. ?? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 09:18:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03308 for dvd-discuss-outgoing; Tue, 18 Apr 2000 09:18:02 -0400 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 JAA03305 for ; Tue, 18 Apr 2000 09:18:00 -0400 Received: from travel-net.com (trj64.travel-net.com [207.176.160.64]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id JAA22147 for ; Tue, 18 Apr 2000 09:18:37 -0400 Message-ID: <38FC6085.9030109@travel-net.com> Date: Tue, 18 Apr 2000 09:17:57 -0400 From: Dan Steinberg Organization: Synthesis User-Agent: Mozilla/5.0 (Windows; N; Win98; en-US; m14) Netscape6/6.0b1 X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Berne Convention References: <20000408223808.A2372@localhost> <000101bfa8f2$cdf990a0$fa7945ce@bugbug.WinNATDomain> <20000418084752.B17299@linuxpower.org> Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Actually my interpretation of it is member nations have to agree to make it illegal to circumvent copy protection schemes and other methods used to restrict use to authorized forms only. It reads better in French, which is possibly the language it was originally drafted in. The cool part is it refers to rights of the _authors_, getting back to the fundamental traditions of copyright law. greslin@linuxpower.org wrote: > On Mon, Apr 17, 2000 at 11:58:58PM -0500, sparky wrote: > > Does anyone have any idea what the WIPO treaty means when it says (quoted in > > faq 1.5.3): > > > > "Contracting Parties shall provide adequate legal protection and effective > > legal remedies against the circumvention of effective technological measures > > that are used by authors in connection with the exercise of their rights > > under this Treaty or the Berne Convention and that restrict acts, in respect > > of their works, which are not authorized by the authors concerned or > > permitted by law" > > My guess would be the common-sense interpretation - nations signing the > treaty agree to provide legal teeth to technological "copyright enforcement" > measures such as copy protection, etc. Awful wording, though. > > "technological measures that are used by authors in connection with the > exercise of their rights".. ?? > > > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > > -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 09:47:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA04739 for dvd-discuss-outgoing; Tue, 18 Apr 2000 09:47:16 -0400 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 JAA04736 for ; Tue, 18 Apr 2000 09:47:14 -0400 Received: from bugbug (max01-47.suba.com [206.69.121.239]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id IAA08908 for ; Tue, 18 Apr 2000 08:46:59 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Berne Convention Date: Tue, 18 Apr 2000 08:46:16 -0500 Message-ID: <000101bfa93c$782229e0$ef7945ce@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: <38FC6085.9030109@travel-net.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 Dan wrote: > > > Actually my interpretation of it is member nations have to agree to make > it illegal to circumvent copy protection schemes and other methods used > to restrict use to authorized forms only. It reads better in French, > which is possibly the language it was originally drafted in. French is the prevailing language in disputes over the meanings of international agreements; this is stated in the Berne agreement. It seems the fact that English copies are mentioned next to French is only an indication of the widespread use of English and the power of English speaking countries. The cool > part is it refers to rights of the _authors_, getting back to the > fundamental traditions of copyright law. In the US, though, this will practically mean the agents of the authors, ie the industries. Maybe in Europe individual authors can afford to litigate, here you have to be an MPAA. To the extent that WIPO extends the powers of US content-producing industries internationally, the same will probably be the case in foreign lands as well. sparky > > greslin@linuxpower.org wrote: > > > On Mon, Apr 17, 2000 at 11:58:58PM -0500, sparky wrote: > > > Does anyone have any idea what the WIPO treaty means when it > says (quoted in > > > faq 1.5.3): > > > > > > "Contracting Parties shall provide adequate legal protection > and effective > > > legal remedies against the circumvention of effective > technological measures > > > that are used by authors in connection with the exercise of > their rights > > > under this Treaty or the Berne Convention and that restrict > acts, in respect > > > of their works, which are not authorized by the authors concerned or > > > permitted by law" > > > > My guess would be the common-sense interpretation - nations signing the > > treaty agree to provide legal teeth to technological "copyright > enforcement" > > measures such as copy protection, etc. Awful wording, though. > > > > "technological measures that are used by authors in connection with the > > exercise of their rights".. ?? > > > > > > > > -- > > Rob Warren > > > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > > > > > > > > -- > Dan Steinberg > > SYNTHESIS:Law & Technology > 35, du Ravin phone: (613) 794-5356 > Chelsea, Quebec fax: (819) 827-4398 > J9B 1N1 e-mail: synthesis@travel-net.com > > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 10:32:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA06265 for dvd-discuss-outgoing; Tue, 18 Apr 2000 10:32:12 -0400 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 KAA06262 for ; Tue, 18 Apr 2000 10:32:11 -0400 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 KAA11689 for ; Tue, 18 Apr 2000 10:31:58 -0400 (EDT) Message-Id: <4.2.2.20000418095842.00d606e0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 18 Apr 2000 10:31:40 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Fwd: DVD Player Helper - DMCA problem? 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 Cyberia, where it hasn't yet gotten any discussion, an interesting restriction on Mac DVD players and a workaround: >From: jaed@JAEDWORKS.COM > >This press release came into my mailbox today (via MacTech magazine's press >release service, ). > >I'm wondering - since the player's behavior, of refusing to run if a >debugger is installed, is probably meant to avoid reverse engineering >techniques that require a debugger, could the software that lets the player >run with a debugger installed possibly be construed as a violation of the >DMCA anti-circumvention-device prohibition? > > > >Bare Bones Software is pleased to announce the release and immediate > >download availability of the "DVD Player Helper". > > > >Beginning with the Power Mac G4 AGP ("Sawtooth") machines, Apple introduced > >version 2.0 of the Apple DVD Player software. This version (and subsequent > >releases) of the Apple DVD Player do not require DVD decoding and playback > >hardware in order to play DVD video disks. However, at the same time, Apple > >introduced a limitation into the DVD player: if you have MacsBug (Apple's > >machine-level debugger) installed, the Apple DVD Player will display an > >error message, and then exit. > > > >If you're a developer, and you use your machine for both software > >development and recreation, the error message is probably frustratingly > >familiar. > > > >Until now, the only way to watch DVDs using the Apple DVD Player has been > >to remove MacsBug from your system folder, restart the machine, watch your > >DVD video(s), put MacsBug back in the system folder, and restart the > >machine again. An inconvenient process, to be sure. > > > >The DVD Player Helper performs exactly one function: it allows you to use > >the Apple DVD Player software to watch DVD videos on a Mac on which MacsBug > >is installed. The Helper is for use on the Power Mac G4 AGP ("Sawtooth"), > >FireWire PowerBook ("Pismo"), and iMac DV. > > > >The DVD Player Helper is freeware, and is available immediately for > >downloading from our Web site at: > > . > >-- >jeanne a. e. devoto ~ jaed@jaedworks.com >http://www.jaedworks.com Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 12:07:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11090 for dvd-discuss-outgoing; Tue, 18 Apr 2000 12:07:43 -0400 Received: from web510.mail.yahoo.com (web510.mail.yahoo.com [216.115.104.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA11087 for ; Tue, 18 Apr 2000 12:07:41 -0400 Message-ID: <20000418160710.22364.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Tue, 18 Apr 2000 09:07:10 PDT Date: Tue, 18 Apr 2000 09:07:10 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] interoperability (RE redux) 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 seem to remember reading somewhere in the legislative history, that the intent of 1201(f) was to keep intact the judicial precedents regarding the legality of reverse engineering. (Anybody have this quote handy?) To me, it seems pretty simple. Programs "exchange information" in data files by reading and/or writing in the appropriate format. Reverse engineering seeks to understand how programs work in order to replace them. Doing so doesn't change your copyright authorization status with respect to any specific data files. The reverse engineering exception says a couple things: 1201(f)(1) says that you can be exempt from 1201(a)(1) to bypass access controls if necessary to understand how one of the programs works (as long as you legally obtain the program and the info isn't already available). 1201(f)(2) says you can create and deploy tools, without violating (a)(2) or (b)(1) to do one of two things (note that there is an "or" in there). First you can do so to further analyze programs as above, but second, you can do what's needed to "enable interoperability" of an independantly created program with other programs. You can't commit copyright infringement in so doing - meaning that you don't get rights to any data by replacing the reader and/or writer. 1201(f)(3) says in essence you can distribute the tools from (f)(2) if you need to do so "solely" to enable interoperability that doesn't create copyright infringement. 1201(f)(4) says that interoperability means to exchange and use data, ie the reader/writer of common data formats model is applicable. What DeCSS does is a two step process: first, it bypasses the player and disk key protections to pull in the title key. This exchanges data (title key) written by the CSS creation program by allowing DeCSS instead of XingDVD (say) to read it. The title key is a functional element that isn't copyrightable by itself, it's licenced anyway as it came on the DVD, and it's functional role would be covered by the (f)(1) exception even if these weren't true and (a)(1) was in effect, so this does not constitute infringement and (f)(2)(second half of "or") and (f)(3) apply. Once the title key is obtained, DeCSS uses it to read the .vob file formats which can then be used with the program on the DVD to enable playback of the movie. This exchange occurs at run-time and since the title key is not part of DeCSS, it would only be a violation of (a)(1), which isn't effective yet. DeCSS should be immune from (a)(2) actions here because it does not have this functionality built in. A DVD with it's title key removed would not be circumventable by DeCSS. Even when (a)(1) is effective, the (f)(2)(second half of "or") arguement would apply, but it has the additional defense that it is authorized descrambling, since it does nothing more than use the authorized key obtained from the authorized media to descramble the legally obtained and licenced .vob files. --- sparky wrote: > We can do this by interpreting 1201(f) in a different way from how we have > been interpreting it. we have been interpreting it to mean that the > circumvention of protective measures must be on one of the interoperating > programs. But what if, as is our case, the protective measures exist not on > the program which is RE'd, but on the data which the RE'd program reads? > > Yes, the RE clause was not intended to apply to creative works, or anything > other than a computer program, according to the Senate Committee Report (see > faq 2.9.1); but this seems to me now a clear instance of shortsightedness. > If the *function* of a program is to play encrypted materials or otherwise > present them, REing the program in order to create a program with identical > functionality means that *that* encryption will have to be broken, > regardless of whether the program itself is has a protective measure applied > to it. > > Perhaps the approach could be taken that the data really does consist of > part of the program in that the format of the data has to be completely > altered in order to play it. Is the movie decrypted, then player, or the > other way around? > > Also, I'd like to point out that I have been laboring under a misconception. > Maybe others have noticed it. I have been under the impression that the > interoperating programs had to include the one that was protected; I realize > this is incorrect. I think though that this has been a general > misconception, not just mine. Note the language of 1201(f), all. The > interoperating programs only need to be the Linux OS and the *new* DVD > player: > > "[...] a person who has lawfully obtained the right to use a copy of a > computer program may circumvent a technological measure that effectively > controls access to a particular portion of that program for the sole purpose > of identifying and analyzing those elements of the program that are > necessary to achieve interoperability OF AN INDEPENDANTLY CREATED PROGRAM > WITH OTHER PROGRAMS [...]" (1) > - note there is no statement here that one of the interoperating programs > needs to be the program with the protective measure on it. When you think > about it, this makes sense, since you could RE a program in order to create > a completely separate one, which will never interact with the original > program. > > sparky > > __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 12:40:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12366 for dvd-discuss-outgoing; Tue, 18 Apr 2000 12:40:22 -0400 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 MAA12345 for ; Tue, 18 Apr 2000 12:40:17 -0400 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 MAA22622; Tue, 18 Apr 2000 12:39:58 -0400 Message-Id: <200004181639.MAA22622@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Mon, 17 Apr 2000 12:54:25 CDT." <20000417125425.A17452@thud.reric.net> Date: Tue, 18 Apr 2000 12:39:28 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: : I think the DVDs-are-programs argument might be a hard sell, because : 1) the files that are CSS-scrambled are _not_ the files containing : program-like content, : 2) non-technical people might have a hard time believing there's programs : on a DVD, and : 3) the amount of non-program (data) content is vastly greater than the : amount of program-like data; there may be 5GB of movie (data) and 30kB of : program (IFO). Is a ``Hello World'' program a program? If it is, then isn't the same code---with the text of War and Peace substituted for the string ``Hello World'' also a progrm? Yet in the latter case data vastly exceeds the instruction? And if the War and Peace program is a program, does most of it cease to be one if one separates the data and the instructions into two separate files? Didn't Dykstra, or however his name is spelled, define a program as ``algorithm + data''? (And if you have a citation to that quotation, I would appreciate seeing it.) -- 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 Tue Apr 18 14:44:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17645 for dvd-discuss-outgoing; Tue, 18 Apr 2000 14:44:37 -0400 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 OAA17642 for ; Tue, 18 Apr 2000 14:44:36 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA20456 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Apr 2000 13:44:33 -0500 Date: Tue, 18 Apr 2000 13:44:33 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418134433.A20373@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000417125425.A17452@thud.reric.net> <200004181639.MAA22622@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <200004181639.MAA22622@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Tue, Apr 18, 2000 at 12:39:28PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 12:39:28PM -0400, Peter D. Junger wrote: > Eric Seppanen writes: > > : I think the DVDs-are-programs argument might be a hard sell, because > : 1) the files that are CSS-scrambled are _not_ the files containing > : program-like content, > : 2) non-technical people might have a hard time believing there's programs > : on a DVD, and > : 3) the amount of non-program (data) content is vastly greater than the > : amount of program-like data; there may be 5GB of movie (data) and 30kB of > : program (IFO). > > Is a ``Hello World'' program a program? > > If it is, then isn't the same code---with the text of War and Peace > substituted for the string ``Hello World'' also a progrm? > > Yet in the latter case data vastly exceeds the instruction? > > And if the War and Peace program is a program, does most of it cease to > be one if one separates the data and the instructions into two separate > files? As a programmer, I'd say yes. The data part, once separated out, ceases to be a program. I'm clueless about the legal answer. > ...Didn't Dykstra, or however his name is spelled, define a program > as ``algorithm + data''? (And if you have a citation to that quotation, > I would appreciate seeing it.) It seems to me that 1201(f) is ridiculously narrow. While reverse engineering can be done on data formats and programs (both of which are equally legitimate operations resulting in either compatibility or interoperability), 1201(f) only covers programs. The "DVDs-are-programs" argument seems to be an effort to get around that narrowness. If it can be done I'd be thrilled; I just wonder if a judge would dismiss the effort as an attempt to get around the wording of 1201(f). Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 14:54:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18181 for dvd-discuss-outgoing; Tue, 18 Apr 2000 14:54:59 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA18178 for ; Tue, 18 Apr 2000 14:54:58 -0400 Received: (qmail 18470 invoked by uid 502); 18 Apr 2000 18:56:45 -0000 Date: Tue, 18 Apr 2000 14:56:45 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418145645.M17299@linuxpower.org> References: <20000417125425.A17452@thud.reric.net> <200004181639.MAA22622@samsara.law.cwru.edu> <20000418134433.A20373@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000418134433.A20373@thud.reric.net>; from Eric Seppanen on Tue, Apr 18, 2000 at 01:44:33PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 01:44:33PM -0500, Eric Seppanen wrote: > > It seems to me that 1201(f) is ridiculously narrow. While reverse > engineering can be done on data formats and programs (both of which are > equally legitimate operations resulting in either compatibility or > interoperability), 1201(f) only covers programs. The "DVDs-are-programs" > argument seems to be an effort to get around that narrowness. If it can > be done I'd be thrilled; I just wonder if a judge would dismiss the effort > as an attempt to get around the wording of 1201(f). Not having a PC-based DVD player nearby, I don't know the answer to this, but lemme ask: does a PC DVD player actually execute DVD program chains or does it simply play back the VOB files? The reason I ask is because the distinction between "is technically a computer" and "is practically a computer" could be made. If DVD program chains can only be directly executed within a specific environment (i.e., a hardware DVD player), even though they may be "programs" in every technical sense it could be argued that they lack the usefulness of a general purpose computer program. However, if a PC-based DVD player is a "DVD program chain execution environment", then assuming TC it's possible to write general-purpose PC software using DVD program chains. Does anyone see a distinction between a "program" and "computer software"? I mean, is there a logical, defined line between Office 2000 and DVD program chains, besides "there just is"? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 15:05:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19179 for dvd-discuss-outgoing; Tue, 18 Apr 2000 15:05:12 -0400 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 PAA19176 for ; Tue, 18 Apr 2000 15:05:11 -0400 Received: from cdpage.com (gdsl180.dnvr.uswest.net [209.180.254.180]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id MAA20695 for ; Tue, 18 Apr 2000 12:05:22 -0700 (PDT) Message-ID: <38FCB170.95A0B319@cdpage.com> Date: Tue, 18 Apr 2000 13:03:12 -0600 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] interoperability (RE redux) References: <20000417125425.A17452@thud.reric.net> <200004181639.MAA22622@samsara.law.cwru.edu> <20000418134433.A20373@thud.reric.net> <20000418145645.M17299@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: > > Not having a PC-based DVD player nearby, I don't know the answer to this, > but lemme ask: does a PC DVD player actually execute DVD program chains > or does it simply play back the VOB files? It executes program chains - that is, when you play a DVD Video disc on a PC DVD Video player, you get a graphic representation of a remote control with buttons that control the movie just as a physical remote control would control a settop, standalone DVD player. Every feature you have on the settop player is supported, and then some. It is quite possible to author applications in the DVD Video format that do a lot more than play movies. -- 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 Tue Apr 18 16:54:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22891 for dvd-discuss-outgoing; Tue, 18 Apr 2000 16:54:46 -0400 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 QAA22888 for ; Tue, 18 Apr 2000 16:54:44 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGJ8B>; Tue, 18 Apr 2000 13:55:23 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AC3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 13:55:23 -0700 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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] ... > > Once the title key is obtained, DeCSS uses it to read the > .vob file formats > which can then be used with the program on the DVD to enable > playback of the > movie. This exchange occurs at run-time and since the title > key is not part of > DeCSS, it would only be a violation of (a)(1), which isn't > effective yet. DeCSS > should be immune from (a)(2) actions here because it does not > have this > functionality built in. A DVD with it's title key removed would not be > circumventable by DeCSS. Even when (a)(1) is effective, the > (f)(2)(second half > of "or") arguement would apply, but it has the additional > defense that it is > authorized descrambling, since it does nothing more than use > the authorized key > obtained from the authorized media to descramble the legally > obtained and > licenced .vob files. ... thus enabling interoperability between DVDs and the Linux environment. -- -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 Tue Apr 18 17:10:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23365 for dvd-discuss-outgoing; Tue, 18 Apr 2000 17:10:28 -0400 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 RAA23362 for ; Tue, 18 Apr 2000 17:10:27 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGJ89>; Tue, 18 Apr 2000 14:11:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AC4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 14:11:07 -0700 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: Eric Seppanen [mailto:eds@reric.net] ... > > It seems to me that 1201(f) is ridiculously narrow. While reverse > engineering can be done on data formats and programs (both of > which are > equally legitimate operations resulting in either compatibility or > interoperability), 1201(f) only covers programs. The > "DVDs-are-programs" > argument seems to be an effort to get around that narrowness. Not so sure that it covers only RE on programs. >1201(f)(2): "[...] a person may develop and employ technological means to >circumvent a technological measure, or to circumvent protection afforded by >a technological measure, in order to enable the identification and analysis >under paragraph (1), or 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." The last clause in (f)(4) would seem to cover creating a program to bypass the encryption measures to read DVDs even if you just consider the DVDs to be data -- that data being "the information which has been exchanged" for the purposes of 1201(f)(4). >1201(f)(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." The applicable reading from (f)(2) I want to focus on are: "a person may ... circumvent the protection afforded by a technological measure ... for the purpose of enabling interperability". The "technological measure" at issue is the encryption of the movie data. We wish to enable interoperability between the movie data on the DVD (the information which has been exchanged) and Linux. RE does not have to be applied to a program, it can be applied to data and/or algorithms, as long as the end result of the RE produces a program ... I think. -- -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 Tue Apr 18 17:34:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24307 for dvd-discuss-outgoing; Tue, 18 Apr 2000 17:34:35 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA24304 for ; Tue, 18 Apr 2000 17:34:33 -0400 Received: (qmail 22814 invoked by uid 502); 18 Apr 2000 21:36:31 -0000 Date: Tue, 18 Apr 2000 17:36:31 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] FAQ Update Message-ID: <20000418173631.S17299@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 Hey all. First, I've been informed by Seth Schoen that the machine hosting the FAQ at www.cssfaq.org was knocked offline by a blackout yesterday and is temporarily out of commission. He is working to get it back online and will let us know as soon as it's up again. Hopefully it won't be any longer than a day or two. Second, the FAQ has been delayed, and we apologize for it. The new "official" FAQ was supposed to have been released yesterday; the fact is, we just found too many things that needed work and we had a choice of rushing to meet deadline or taking the extra time and doing it right. The development cut is still up (check -discuss archives for URL, I don't have it right offhand), and hopefully we'll have the new FAQ by next Monday. We'll see. Finally, I want to thank everyone who since the beginning has contributed input to the FAQ. As we move to version 1.0, it's important here to point out that there's no way it could have been done without everyone's help. My personal thanks. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 18:16:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA25556 for dvd-discuss-outgoing; Tue, 18 Apr 2000 18:16:09 -0400 Received: from hotmail.com (f178.law8.hotmail.com [216.33.241.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA25553 for ; Tue, 18 Apr 2000 18:16:08 -0400 Received: (qmail 63766 invoked by uid 0); 18 Apr 2000 22:15:37 -0000 Message-ID: <20000418221537.63765.qmail@hotmail.com> Received: from 208.41.124.53 by www.hotmail.com with HTTP; Tue, 18 Apr 2000 15:15:37 PDT X-Originating-IP: [208.41.124.53] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 22:15:37 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 I don't know. You could technically say that a program is a set of instructions. Thus, the .ifo files have instructions as to what certain values should be and where to put them. But another argument is about emulators. Say Joe has a Nintendo. After some years, the machine breaks down and ceases to operate. So Joe decides to experiment and creates an emulator on his computer so that he can still play his games. Now obviously, he has to do some RE on the Nintendo. So is this not legal by DMCA? The nintendo is not a computer program, but a hardware device. But its components are nothing different than what you would find in a computer. The same is true with DVD players, they have a CPU, memory, I/O channels and decoding hardware. They are specialized computers that have been striped down of extra components. They have no nice GUI interface because it is not needed. Your PC at home runs an emulator that uses your PC's CPU, memory, I/O channels and either emulates decoding hardware or uses your existing decoding hardware. (Decoding hardware here includes your video card since some of these cards have this ability built in.) So since we are being specific, DVD players are computers because they process an input and have an output which are electronic signals to a monitor of some sort. So, DVD's are programs because they provide instructions to the computer, ie. DVD Player. Is there something wrong to this logic? Richard Not having a PC-based DVD player nearby, I don't know the answer to this, but lemme ask: does a PC DVD player actually execute DVD program chains or does it simply play back the VOB files? The reason I ask is because the distinction between "is technically a computer" and "is practically a computer" could be made. If DVD program chains can only be directly executed within a specific environment (i.e., a hardware DVD player), even though they may be "programs" in every technical sense it could be argued that they lack the usefulness of a general purpose computer program. However, if a PC-based DVD player is a "DVD program chain execution environment", then assuming TC it's possible to write general-purpose PC software using DVD program chains. Does anyone see a distinction between a "program" and "computer software"? I mean, is there a logical, defined line between Office 2000 and DVD program chains, besides "there just is"? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 20:09:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA30066 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:09:23 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA30063 for ; Tue, 18 Apr 2000 20:09:22 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12hi3W-00012Y-00; Tue, 18 Apr 2000 17:09:22 -0700 Date: Tue, 18 Apr 2000 17:09:22 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418170922.C1696@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000417125425.A17452@thud.reric.net> <000001bfa8ee$93a7e540$fa7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000001bfa8ee$93a7e540$fa7945ce@bugbug.WinNATDomain>; from sparky@suba.com on Mon, Apr 17, 2000 at 11:28:40PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky writes: > But I have a problem with this. The LiViD effort *was* RE; is it suddenly > not RE simply because the DVD CCA wouldn't give CSS licenses for open source > players? Point being: to make a Linux (or other OS) player, the player must > decrypt CSS. The only ways for this to be done is to get a license from the > DVD CCA, which won't happen because Linux is open source ("DMCA Mistake No. > 56,802: allowing a private organization to control a standard for copy > protecting leads to monopoly"), or to break CSS as part of the RE work to > build a Linux player. Please be more specific here. The DVD CCA _has_ given a license for a Linux player. It's just not an open source player. The DVD CCA would not give a license for an open-source Linux player, because the CSS license would forbid issuing a CCA-licensed DVD player under an open source license. (As descriptions of software licensing terms, the CSS license and the Open Source Definition are incompatible.) The DVD CCA doesn't have any objection to players that run on open source operating systems; their objections are to open source players. Many people who use open source operating systems will prefer or demand that other software they use be open source. The articles about DeCSS keep getting this point wrong. (They are saying that there is no Linux player or that the DVD CCA would not give a CSS license for a Linux player.) Maybe they are getting this point wrong because DeCSS supporters who write about CSS and open source are not being precise enough in their language. It's also possible that the DVD CCA would not have given a license to anyone to write a Linux player _until_ Linux interoperability became a controversial issue as a result of Jon Johansen's claim that this is why DeCSS was distributed. But can anybody prove this? Linux interoperability, now, given the existence of a licensed player, is not the issue. The DVD CCA knows that, and they are explaining it: Can manufacturers of products for computers using the Linux operating system obtain a license to use CSS to manufacture a DVD player for Linux applications? Absolutely. The DVD Copy Control Association would welcomes applications for the legal use of CSS from all manufacturers. In fact, Sigma Designs (www.sigmadesigns.com) is now marketing a DVD player for Linux under its license to manufacture products using CSS. The press will pay attention to them when they say this. This point is going to be impossible to dispute. There is going to be a proprietary binary-only Linux player. And it's going to be an absolute public-relations disaster, unless people stop talking only about the non-availability of Linux DVD support. For that matter, the existence of licensed proprietary Linux players is even likely to come up in court, if defendants mention "Linux" and "interoperability" in the same sentence. :-( -- 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 Apr 18 20:31:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31099 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:31:11 -0400 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 UAA31096 for ; Tue, 18 Apr 2000 20:31:10 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGKKH>; Tue, 18 Apr 2000 17:31:52 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AC8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 17:31:51 -0700 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 don't think they were getting the point wrong so much as they are out of date. The commmercial DVD player for Linux has appeared since the beginning of this whole DeCSS flap. At the time that is at issue here, the statement "there is no DVD player for Linux" was true. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Seth David Schoen [mailto:schoen@loyalty.org] > The articles about DeCSS keep getting this point wrong. (They are > saying that there is no Linux player or that the DVD CCA would > not give a CSS license for a Linux player.) Maybe they are > getting this point wrong because DeCSS supporters who write about > CSS and open source are not being precise enough in their > language. > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 20:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31814 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:52:34 -0400 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 UAA31811 for ; Tue, 18 Apr 2000 20:52:32 -0400 Received: from bugbug (max01-07.suba.com [206.69.121.199]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA05428 for ; Tue, 18 Apr 2000 19:52:29 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 19:51:49 -0500 Message-ID: <000201bfa999$71f16880$e27945ce@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: <20000418221537.63765.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 wrote: > > I don't know. You could technically say that a program is a set of > instructions. Thus, the .ifo files have instructions as to what certain > values should be and where to put them. But another argument is about > emulators. Say Joe has a Nintendo. After some years, the machine breaks > down and ceases to operate. So Joe decides to experiment and creates an > emulator on his computer so that he can still play his games. Now > obviously, he has to do some RE on the Nintendo. So is this not legal by > DMCA? The nintendo is not a computer program, but a hardware > device. But > its components are nothing different than what you would find in > a computer. This would not fall under 1201's purview, because a) the Nintendo player (as a hardware device) is not copyrighted, it's patented, and b) there are no protection measures placed on the Nintendo player. If Joe RE'd the Nintendo games, which had access control applied to them, or if the player were not a hardware device, but a program, AND it had access control applied to it, then 1201 could be brought to bear. Also, remember, "program = set of instructions that produce a result" IS the definition of program we have to work with; there isn't any "could say technically". Even if we want to create arguments that change this definition - which I don't personally see a reason for doing, since this definition is so broad - it is the defintion we have to start with. > The same is true with DVD players, they have a CPU, memory, I/O > channels > and decoding hardware. They are specialized computers that have been > striped down of extra components. They have no nice GUI > interface because > it is not needed. Your PC at home runs an emulator that uses > your PC's CPU, > memory, I/O channels and either emulates decoding hardware or uses your > existing decoding hardware. (Decoding hardware here includes your video > card since some of these cards have this ability built in.) So > since we are > being specific, DVD players are computers because they process an > input and > have an output which are electronic signals to a monitor of some > sort. So, > DVD's are programs because they provide instructions to the computer, ie. > DVD Player. Is there something wrong to this logic? DVDs will be programs if they provide instructions to anything, hardware or software. The legal definition of program is only that it be a set of instructions that produce a result; it is immaterial what object it is to which the instructions are sent. However, assuming that your logic is correct, it might help to determine whether licensed hardware players are "computers". I really want to find a legal definition of "computer" (though I wonder if it will be so broad that legally speaking I'll have to rethink the bread I cook every morning under the conception of "program"). Does Bloodhound Taylor have any suggestions where to find one? :) sparky > > Richard > > Not having a PC-based DVD player nearby, I don't know the answer to this, > but lemme ask: does a PC DVD player actually execute DVD program chains > or does it simply play back the VOB files? > > The reason I ask is because the distinction between "is technically a > computer" and "is practically a computer" could be made. If DVD program > chains can only be directly executed within a specific environment (i.e., > a hardware DVD player), even though they may be "programs" in every > technical sense it could be argued that they lack the usefulness of a > general purpose computer program. > > However, if a PC-based DVD player is a "DVD program chain execution > environment", then assuming TC it's possible to write general-purpose > PC software using DVD program chains. > > Does anyone see a distinction between a "program" and "computer software"? > I mean, is there a logical, defined line between Office 2000 and > DVD program > chains, besides "there just is"? > > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 20:52:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31828 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:52:37 -0400 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 UAA31825 for ; Tue, 18 Apr 2000 20:52:35 -0400 Received: from bugbug (max01-07.suba.com [206.69.121.199]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA05431 for ; Tue, 18 Apr 2000 19:52:32 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Berne Convention Date: Tue, 18 Apr 2000 19:51:52 -0500 Message-ID: <000301bfa999$73c5da60$e27945ce@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: <000101bfa93c$782229e0$ef7945ce@bugbug.WinNATDomain> 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 sparky wrote > > > Dan wrote: > > > > > > Actually my interpretation of it is member nations have to agree to make > > it illegal to circumvent copy protection schemes and other methods used > > to restrict use to authorized forms only. It reads better in French, > > which is possibly the language it was originally drafted in. > > French is the prevailing language in disputes over the meanings of > international agreements; this is stated in the Berne agreement. It seems > the fact that English copies are mentioned next to French is only an > indication of the widespread use of English and the power of English > speaking countries. Fraid I have to take this back somewhat; the WIPO treaty from which the below quote comes states that all the languages in which it's written are equal. How diplomatic! The Berne Convention agreement, however, values French above all. sp From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 20:52:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31846 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:52:43 -0400 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 UAA31841 for ; Tue, 18 Apr 2000 20:52:41 -0400 Received: from bugbug (max01-07.suba.com [206.69.121.199]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA05442 for ; Tue, 18 Apr 2000 19:52:38 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 19:51:57 -0500 Message-ID: <000501bfa999$76c0cae0$e27945ce@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: <20000418134433.A20373@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 Eric wrote: > > On Tue, Apr 18, 2000 at 12:39:28PM -0400, Peter D. Junger wrote: > > Eric Seppanen writes: > > > > : I think the DVDs-are-programs argument might be a hard sell, because > > : 1) the files that are CSS-scrambled are _not_ the files containing > > : program-like content, > > : 2) non-technical people might have a hard time believing > there's programs > > : on a DVD, and > > : 3) the amount of non-program (data) content is vastly greater than the > > : amount of program-like data; there may be 5GB of movie (data) > and 30kB of > > : program (IFO). > > > > Is a ``Hello World'' program a program? > > > > If it is, then isn't the same code---with the text of War and Peace > > substituted for the string ``Hello World'' also a progrm? > > > > Yet in the latter case data vastly exceeds the instruction? > > > > And if the War and Peace program is a program, does most of it cease to > > be one if one separates the data and the instructions into two separate > > files? > > As a programmer, I'd say yes. The data part, once separated out, ceases > to be a program. I'm clueless about the legal answer. There are a couple strange points here: - why is the data "separated out" for the "War and Peace" program and not for the "Hello World" program? Just because there's more of it? That doesn't make sense. At least in this case, it's all a bunch of ASCII no matter how you slice it. It seems to me that it's separated out from the start or not at all. (Also, you didn't say "separated out" in your original post.) - Why does it matter if the data is separated out? If it is then we have a small program. If it isn't, then we have a large program. Either way we have a program, and that's all we need. Is it the legal definition of "program" which is making you think this way, program vs data? If yes, just remember, that def doesn't mean we have to separate the data from the program, only that we have to have a program; if we do, we can explore the RE exemption. > > > ...Didn't Dykstra, or however his name is spelled, define a program > > as ``algorithm + data''? (And if you have a citation to that quotation, > > I would appreciate seeing it.) > > It seems to me that 1201(f) is ridiculously narrow. While reverse > engineering can be done on data formats and programs (both of which are > equally legitimate operations resulting in either compatibility or > interoperability), 1201(f) only covers programs. The "DVDs-are-programs" > argument seems to be an effort to get around that narrowness. If it can > be done I'd be thrilled; I just wonder if a judge would dismiss the effort > as an attempt to get around the wording of 1201(f). There's no attempt to get around 1201(f) here; we're trying to apply it. Anything which is a software instruction set that produces a result is legally a program. If the DVD player is any part software, that part is legally a program, because it is instructions which output the movie data in a coordinated way to produce the movie you watch. (Do you really think the definition is narrow? I think it's huge: my chile con cheso recipe is now a program.) What it sounds like you're implying here is that the RE is *only* of the hardware player, and that attempts to call DVDs "programs" is nothing but verbal flimflammery. Correct me if I'm wrong, but wasn't LiViD creating a *software* player? And also, is 1201(f) really only to apply to software? Does the language say that? I believe that in the Senate Committe, they only said it was *not* to apply to copyrighted works, which makes complete sense; you don't RE a work of art. (Unless of course you're a postmodern deconstructionist hermeneutics graduate student, but that sort always has low morals. :) ) This does not rule out RE of hardware. However, hardware would be patented, not copyrighted, and probably would not have protection measures such as encryption on it, so it's unlikely that a restriction of the sort you describe would matter anyway. sparky > > Eric > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 20:52:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31859 for dvd-discuss-outgoing; Tue, 18 Apr 2000 20:52:46 -0400 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 UAA31842 for ; Tue, 18 Apr 2000 20:52:42 -0400 Received: from bugbug (max01-07.suba.com [206.69.121.199]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA05435 for ; Tue, 18 Apr 2000 19:52:34 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 19:51:54 -0500 Message-ID: <000401bfa999$752654c0$e27945ce@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: <200004181639.MAA22622@samsara.law.cwru.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 Peter Junger wrote: > > Eric Seppanen writes: > > : I think the DVDs-are-programs argument might be a hard sell, because > : 1) the files that are CSS-scrambled are _not_ the files containing > : program-like content, > : 2) non-technical people might have a hard time believing > there's programs > : on a DVD, and > : 3) the amount of non-program (data) content is vastly greater than the > : amount of program-like data; there may be 5GB of movie (data) > and 30kB of > : program (IFO). > > Is a ``Hello World'' program a program? > > If it is, then isn't the same code---with the text of War and Peace > substituted for the string ``Hello World'' also a progrm? > > Yet in the latter case data vastly exceeds the instruction? > > And if the War and Peace program is a program, does most of it cease to > be one if one separates the data and the instructions into two separate > files? Didn't Dykstra, or however his name is spelled, define a program > as ``algorithm + data''? (And if you have a citation to that quotation, > I would appreciate seeing it.) I don't think that would fly with the court, because all of a sudden copyrighted works could be reverse engineered, rendering copyright holder's rights pointless (you will never find a digitally rendered copyrighted work without there being some instruction set which will play/display it). Also, legally, programs are instruction sets that produce a result, that is, they are dynamic. The question here is just whether the data in question is totally inert, or not. Data acted upon which is also an instruction set would be a program itself, maybe even part of the acting program, but data which is not another instruction set is inert and therefore not part of the instruction set, therefore contributes nothing to the running of the program. you will probably have counter-examples, so fire away. sparky > > -- > 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 Tue Apr 18 22:01:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03540 for dvd-discuss-outgoing; Tue, 18 Apr 2000 22:01:56 -0400 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 WAA03537 for ; Tue, 18 Apr 2000 22:01:54 -0400 Received: from bugbug (max01-07.suba.com [206.69.121.199]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA07646 for ; Tue, 18 Apr 2000 21:01:45 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 21:01:04 -0500 Message-ID: <000601bfa9a3$1e9e08a0$e27945ce@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: <20000418170922.C1696@zork.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 Seth wrote: > > sparky writes: > > > But I have a problem with this. The LiViD effort *was* RE; is > it suddenly > > not RE simply because the DVD CCA wouldn't give CSS licenses > for open source > > players? Point being: to make a Linux (or other OS) player, the > player must > > decrypt CSS. The only ways for this to be done is to get a > license from the > > DVD CCA, which won't happen because Linux is open source ("DMCA > Mistake No. > > 56,802: allowing a private organization to control a standard for copy > > protecting leads to monopoly"), or to break CSS as part of the > RE work to > > build a Linux player. > > Please be more specific here. > > The DVD CCA _has_ given a license for a Linux player. It's just not > an open source player. > > The DVD CCA would not give a license for an open-source Linux player, > because the CSS license would forbid issuing a CCA-licensed DVD > player under an open source license. (As descriptions of software > licensing terms, the CSS license and the Open Source Definition > are incompatible.) Sorry. This is exactly what I was getting at. The DVD CCA, as a matter of course, would not ever give a license to LiViD. This means that if you want to create an open source DVd player through RE, the RE effort also must break CSS, as that is the only way to create a player which will actually work. > > The DVD CCA doesn't have any objection to players that run on > open source operating systems; their objections are to open source > players. Yes, precisely, and the LiViD player was open source. > > Many people who use open source operating systems will prefer or > demand that other software they use be open source. > > The articles about DeCSS keep getting this point wrong. (They are > saying that there is no Linux player or that the DVD CCA would > not give a CSS license for a Linux player.) Maybe they are > getting this point wrong because DeCSS supporters who write about > CSS and open source are not being precise enough in their > language. > > It's also possible that the DVD CCA would not have given a license > to anyone to write a Linux player _until_ Linux interoperability > became a controversial issue as a result of Jon Johansen's claim > that this is why DeCSS was distributed. But can anybody prove this? I believe Jon Johansen created DeCSS for *any* OS which did not have DVD support. Linux is not JJ's favorite OS; he wanted to use it on OpenBSD or something. (This is in the LiViD archives.) > > Linux interoperability, now, given the existence of a licensed > player, is not the issue. More important than Johansen's intentions - I hope - is that DeCSS was handed over to the LiViD effort, which was open source. Therefore it is not about "Linux interoperability", but about the distribution of open source materials to make an open source player. > > The DVD CCA knows that, and they are explaining it: > > Can manufacturers of products for computers using the Linux > operating system obtain a license to use CSS to manufacture a DVD > player for Linux applications? > > Absolutely. The DVD Copy Control Association would welcomes > applications for the legal use of CSS from all manufacturers. In > fact, Sigma Designs (www.sigmadesigns.com) is now marketing a DVD > player for Linux under its license to manufacture products using > CSS. > > The press will pay attention to them when they say this. What a pile of propaganda. The DVD CCA is making, and hoping that others make, the same mistake that I made above: equating Linux with open source. They're saying "Oh, Linux, yes we love Linux!" but ask them if they'll give a free license to LiViD now. Which would in fact solve the problem of LiViD's legality. It would just also mean that we could all send Word files encrypted with CSS. ("Hah! With my 40-bit protection, I can now start my plans to *conquer the world*..") As long as this distinction is not lost in court, the PR badness won't be so bad. (Hey, who says "Absolutely" in an FAQ? That one word is obvious propaganda, I'm totally serious. FAQ's aren't emphatic. They say Yes, No, Maybe, Not At This Time, stuff like that.) > > This point is going to be impossible to dispute. There is going to > be a proprietary binary-only Linux player. And it's going to be > an absolute public-relations disaster, unless people stop talking > only about the non-availability of Linux DVD support. > > For that matter, the existence of licensed proprietary Linux players > is even likely to come up in court, if defendants mention "Linux" > and "interoperability" in the same sentence. :-( I think they're more likely to have to mention how well they complied with the GPL in their circulation of DeCSS. 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 Tue Apr 18 22:03:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA03620 for dvd-discuss-outgoing; Tue, 18 Apr 2000 22:03:25 -0400 Received: from arh1176 (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA03616 for ; Tue, 18 Apr 2000 22:03:24 -0400 Received: by arh1176 (Postfix, from userid 1000) id 8696D7255; Tue, 18 Apr 2000 21:03:29 -0500 (CDT) Date: Tue, 18 Apr 2000 21:03:29 -0500 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418210329.A21751@arh1176> References: <200004181639.MAA22622@samsara.law.cwru.edu> <000401bfa999$752654c0$e27945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.1.9i In-Reply-To: <000401bfa999$752654c0$e27945ce@bugbug.WinNATDomain>; from sparky@suba.com on Tue, Apr 18, 2000 at 07:51:54PM -0500 From: steve@arh1176.arh1176 (Steven Barker) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 07:51:54PM -0500, sparky wrote: > Peter Junger wrote: > > Is a ``Hello World'' program a program? > > > > If it is, then isn't the same code---with the text of War and Peace > > substituted for the string ``Hello World'' also a progrm? > > > > Yet in the latter case data vastly exceeds the instruction? > > > > And if the War and Peace program is a program, does most of it cease to > > be one if one separates the data and the instructions into two separate > > files? Didn't Dykstra, or however his name is spelled, define a program > > as ``algorithm + data''? (And if you have a citation to that quotation, > > I would appreciate seeing it.) > > I don't think that would fly with the court, because all of a sudden > copyrighted works could be reverse engineered, rendering copyright holder's > rights pointless (you will never find a digitally rendered copyrighted work > without there being some instruction set which will play/display it). Also, > legally, programs are instruction sets that produce a result, that is, they > are dynamic. The question here is just whether the data in question is > totally inert, or not. Data acted upon which is also an instruction set > would be a program itself, maybe even part of the acting program, but data > which is not another instruction set is inert and therefore not part of the > instruction set, therefore contributes nothing to the running of the > program. you will probably have counter-examples, so fire away. Not all copyrighted works could be reverse engineered. Only "programs" could be. In addition, a program the contains in it the text to War and Peace is probably a derivative work of the book, so to create one (or a RE'd version) would require the permission of the copyright holder to War and Peace (I'm assuming it is copyrighted, substitute in something else if it's not). If, on the other hand, I found a program that displayed on my screen the text to War and Peace, which it read from a seperate file on my hard drive, then I could reverse engineer the program, without tampering with the data file. My new version could then read the data file on it's own and do with it whatever I wanted it to. With DVD's and DeCSS it gets much more complicated. First of all, there are two kinds of data files. One kind is data (a mpeg movie) and the other kind is possibly a program itself (the .ifo files). The data file can be used on it's own, or in conjunction with the "program" files. The problem is that the data files are scrambled, making it difficult (almost put impossible) for non-standard programs to read them. So MoRE reverse engineered one of the existing programs to find out how the encryption worked. The purpose of this reverse engineering was to allow other programs (mpeg players) to interoperate with the "program" content of the DVD by exchangeing the "data" content meaningfully. DeCSS was what they created as an means to make the "data" be in a format that the programs could meaningfully interpret as they interoperated. This makes it's users exempt from 1201(a)(1) under 1201(f)(2) and it's distributers exempt from both 1201(a)(2) and 1201(b) under1201(f)(3). Steve Barker From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 22:49:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05473 for dvd-discuss-outgoing; Tue, 18 Apr 2000 22:49:48 -0400 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 WAA05470 for ; Tue, 18 Apr 2000 22:49:46 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id VAA21728 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Apr 2000 21:49:41 -0500 Date: Tue, 18 Apr 2000 21:49:41 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418214941.A21622@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000418134433.A20373@thud.reric.net> <000501bfa999$76c0cae0$e27945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <000501bfa999$76c0cae0$e27945ce@bugbug.WinNATDomain>; from sparky@suba.com on Tue, Apr 18, 2000 at 07:51:57PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 07:51:57PM -0500, sparky wrote: > Eric wrote: > > It seems to me that 1201(f) is ridiculously narrow. While reverse > > engineering can be done on data formats and programs (both of which are > > equally legitimate operations resulting in either compatibility or > > interoperability), 1201(f) only covers programs. The "DVDs-are-programs" > > argument seems to be an effort to get around that narrowness. If it can > > be done I'd be thrilled; I just wonder if a judge would dismiss the effort > > as an attempt to get around the wording of 1201(f). > > There's no attempt to get around 1201(f) here; we're trying to apply it. > Anything which is a software instruction set that produces a result is > legally a program. If the DVD player is any part software, that part is > legally a program, because it is instructions which output the movie data in > a coordinated way to produce the movie you watch. (Do you really think the > definition is narrow? I think it's huge: my chile con cheso recipe is now a > program.) I never said we're trying to get around 1201(f), I said we're trying to get around the _wording_ of 1201(f). I'm trying to explain why it would be easy for a judge to think that we're trying to sneak extra stuff in through the 1201(f) exemption that's not in 1201(f). > What it sounds like you're implying here is that the RE is *only* of the > hardware player, and that attempts to call DVDs "programs" is nothing but > verbal flimflammery. ... That's not what I meant at all. 1201(f) does not say that bypassing access controls is OK in order to achieve interoperability. That would be great if it did. Instead, it says that you may bypass access controls that protect a program for the purpose of interoperability. Now DeCSS bypasses what's claimed to be an "access control" device. The critical question is, does that access-control-device provide access to a program? Since CSS is only used on VOBs, which most people agree are _not_ programs, the answer is no, and 1201(f) cannot be used. *That's* why I think 1201(f) is ridiculously narrow. Only a tiny set of legitimate reverse-engineering tasks are actually covered. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 22:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05703 for dvd-discuss-outgoing; Tue, 18 Apr 2000 22:55:44 -0400 Received: from waltz.rahul.net (postfix@waltz.rahul.net [192.160.13.9]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05700 for ; Tue, 18 Apr 2000 22:55:42 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 328CE99C90; Tue, 18 Apr 2000 19:55:37 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 28D2493B37 for ; Tue, 18 Apr 2000 19:55:37 -0700 (PDT) Date: Tue, 18 Apr 2000 19:55:36 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000418170922.C1696@zork.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, 18 Apr 2000, Seth David Schoen wrote: > It's also possible that the DVD CCA would not have given a license > to anyone to write a Linux player _until_ Linux interoperability > became a controversial issue as a result of Jon Johansen's claim > that this is why DeCSS was distributed. But can anybody prove this? Well, Sigma Designs had stated outright that they weren't allowed by the MPAA to create drivers for the Hollywood Plus because software CSS would be required, so the MPAA's current position is certainly changed from before. (And even then, Sigma's board with Linux drivers doesn't need software CSS.) Also, the MPAA hasn't "given" a license. They charge for it, and the charge is out of reach of any private individual. The MPAA has tried to gloss over that point by claiming that anyone can license CSS because there are no "royalties", but a fee doesn't have to be a royalty for it to be too big to pay. From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 23:41:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07186 for dvd-discuss-outgoing; Tue, 18 Apr 2000 23:41:53 -0400 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 XAA07183 for ; Tue, 18 Apr 2000 23:41:52 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id WAA22047 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Apr 2000 22:41:50 -0500 Date: Tue, 18 Apr 2000 22:41:50 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418224150.A21806@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000418170922.C1696@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: ; from arromdee@rahul.net on Tue, Apr 18, 2000 at 07:55:36PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 07:55:36PM -0700, Ken Arromdee wrote: > On Tue, 18 Apr 2000, Seth David Schoen wrote: > > It's also possible that the DVD CCA would not have given a license > > to anyone to write a Linux player _until_ Linux interoperability > > became a controversial issue as a result of Jon Johansen's claim > > that this is why DeCSS was distributed. But can anybody prove this? > > Well, Sigma Designs had stated outright that they weren't allowed by the MPAA > to create drivers for the Hollywood Plus because software CSS would be > required, so the MPAA's current position is certainly changed from before. > (And even then, Sigma's board with Linux drivers doesn't need software CSS.) Can you provide a link to this statement? Sigma's statements on Livid-dev say that they'd like to supply a driver for the HW+, but can't release the source, and linux provides very few unchanging APIs for people that want to write binary-only drivers (and they'd need to provide separate SMP-compiled drivers, etc.). From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 18 23:50:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07575 for dvd-discuss-outgoing; Tue, 18 Apr 2000 23:50:22 -0400 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 XAA07572 for ; Tue, 18 Apr 2000 23:50:19 -0400 Received: (from paul@localhost) by dial121.roadrunner.com (8.8.7/8.8.7) id VAA02999 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Apr 2000 21:54:11 -0600 Date: Tue, 18 Apr 2000 21:54:10 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000418215410.A2913@localhost> References: <20000418170922.C1696@zork.net> <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain>; from sparky@suba.com on Tue, Apr 18, 2000 at 09:01:04PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 09:01:04PM -0500, sparky wrote: > > Seth wrote: [ ... ] > > The DVD CCA knows that, and they are explaining it: > > > > Can manufacturers of products for computers using the Linux > > operating system obtain a license to use CSS to manufacture a DVD > > player for Linux applications? > > > > Absolutely. The DVD Copy Control Association would welcomes > > applications for the legal use of CSS from all manufacturers. In > > fact, Sigma Designs (www.sigmadesigns.com) is now marketing a DVD > > player for Linux under its license to manufacture products using > > CSS. Take a look at the annotator on cyber.law.harvard.edu. I annotated their FAQ after Wendy put it up, and I looked at the sigmadesign web site. This claim by the DCCA was false two weeks ago. As of that time there was some vaporware, but no product. OK. I just checked again, now: Tue Apr 18 21:43:59 MDT 2000. VAPOR. The NetStream 2000 improves upon the award-wining video playback technology of the REALmagic Hollywood Plus, this network video streaming card delivers broadcast-quality video to your network. Currently supports Win 9X and will soon support NT 4.0 and Linux OS . > > The press will pay attention to them when they say this. > > What a pile of propaganda. The DVD CCA is making, and hoping that others > make, the same mistake that I made above: equating Linux with open source. > They're saying "Oh, Linux, yes we love Linux!" but ask them if they'll give > a free license to LiViD now. Which would in fact solve the problem of > LiViD's legality. It would just also mean that we could all send Word files > encrypted with CSS. ("Hah! With my 40-bit protection, I can now start my > plans to *conquer the world*..") As long as this distinction is not lost in > court, the PR badness won't be so bad. > > (Hey, who says "Absolutely" in an FAQ? That one word is obvious propaganda, > I'm totally serious. FAQ's aren't emphatic. They say Yes, No, Maybe, Not At > This Time, stuff like that.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 00:30:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09100 for dvd-discuss-outgoing; Wed, 19 Apr 2000 00:30:01 -0400 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 AAA09079 for ; Wed, 19 Apr 2000 00:29:59 -0400 Received: from bugbug (max02-19.suba.com [206.69.121.83]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA12178 for ; Tue, 18 Apr 2000 23:29:52 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 23:29:12 -0500 Message-ID: <000101bfa9b7$cff03b00$537945ce@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: <20000418214941.A21622@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 Eric wrote: > > On Tue, Apr 18, 2000 at 07:51:57PM -0500, sparky wrote: > > Eric wrote: > > > It seems to me that 1201(f) is ridiculously narrow. While reverse > > > engineering can be done on data formats and programs (both of > which are > > > equally legitimate operations resulting in either compatibility or > > > interoperability), 1201(f) only covers programs. The > "DVDs-are-programs" > > > argument seems to be an effort to get around that narrowness. > If it can > > > be done I'd be thrilled; I just wonder if a judge would > dismiss the effort > > > as an attempt to get around the wording of 1201(f). > > > > There's no attempt to get around 1201(f) here; we're trying to apply it. > > Anything which is a software instruction set that produces a result is > > legally a program. If the DVD player is any part software, that part is > > legally a program, because it is instructions which output the > movie data in > > a coordinated way to produce the movie you watch. (Do you > really think the > > definition is narrow? I think it's huge: my chile con cheso > recipe is now a > > program.) > > I never said we're trying to get around 1201(f), I said we're trying to > get around the _wording_ of 1201(f). I'm trying to explain why it would > be easy for a judge to think that we're trying to sneak extra stuff in > through the 1201(f) exemption that's not in 1201(f). > > > What it sounds like you're implying here is that the RE is *only* of the > > hardware player, and that attempts to call DVDs "programs" is > nothing but > > verbal flimflammery. ... > > That's not what I meant at all. 1201(f) does not say that bypassing > access controls is OK in order to achieve interoperability. That would be > great if it did. Instead, it says that you may bypass access controls > that protect a program for the purpose of interoperability. This is confusing, but I understand what you're getting at and I agree, see below. > > Now DeCSS bypasses what's claimed to be an "access control" device. The > critical question is, does that access-control-device provide access to a > program? Since CSS is only used on VOBs, which most people agree are > _not_ programs, the answer is no, and 1201(f) cannot be used. > > *That's* why I think 1201(f) is ridiculously narrow. Only a tiny set of > legitimate reverse-engineering tasks are actually covered. Ah. After rereading 1201(f)(1), I have to agree with you. The real sticker is just 7 words: "may circumvent a technological measure that effectively controls access *to a particular portion of that program* [ ...]" (Actually it's just one word, "that".) The language of the clause forces an RE defense to adopt some fancy footwork.. This sounds like a job for Superlawyer. Dear Lawyers, is there any accepted way of attacking laws the language of which is inadequate to address the many instances/contexts of an action, like the RE clause? And, given the language of 1201(f)(1), is there any possibility, in general, of getting a judge to recognize that the way in which DeCSS was produced was an RE effort to create a new open source DVD player, and that the breaking of CSS is a necessary part of that effort? Is it possible to look at it this way: that CSS itself allows a programmatic result to take place, not to say technically that it is part of the program, but it contributes to the "result" that must exist for the legal program, so therefore it an element of the playing program? I have a further question: rereading Bryan's post from yesterday about the exchange of keys in the DeCSS process, it appears that CSS goes into action before any of the program gets played. Perhaps I am misunderstanding something. What happens if CSS isn't decrypted? Does the DVD playing program run and you see nothing but static or a blank screen, or does it not run and give you a message "protected files will not play" or something? Isn't it the latter according to the dvd faq? And, does this not mean that, even though the program files themselves are not scrambled, CSS prevents the program as a whole from running? I hope this is correct. CSS preventing the whole program from running ties CSS to the program quite firmly. Going a step farther, either CSS runs before the program runs, meaning even though only "data" files are scrambled, CSS inhibits the rest of the program, or else it runs with the playing program. On this basis can we say that CSS is as far as the law should be concerned, part of the playing program? Or perhaps we should understand it this way: it's not as if CSS runs independently of playing the DVD. In fact, this latter understanding would probably be all the court needed to hear to drive home that the access control is part of the playing mechanism. sparky > > Eric > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 00:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09210 for dvd-discuss-outgoing; Wed, 19 Apr 2000 00:32:59 -0400 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 AAA09205 for ; Wed, 19 Apr 2000 00:32:58 -0400 Received: from bugbug (max02-19.suba.com [206.69.121.83]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA12284 for ; Tue, 18 Apr 2000 23:32:56 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Tue, 18 Apr 2000 23:32:16 -0500 Message-ID: <000201bfa9b8$3e011c40$537945ce@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: <20000418215410.A2913@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: > > OK. > > I just checked again, now: Tue Apr 18 21:43:59 MDT 2000. > > VAPOR. I love the smell of napalm in the morning.. sp > The NetStream 2000 improves upon the award-wining video playback technology of the REALmagic Hollywood Plus, this network video streaming card delivers broadcast-quality video to your network. Currently supports Win 9X and will soon support NT 4.0 and Linux OS . > > The press will pay attention to them when they say this. > > What a pile of propaganda. The DVD CCA is making, and hoping that others > make, the same mistake that I made above: equating Linux with open source. > They're saying "Oh, Linux, yes we love Linux!" but ask them if they'll give > a free license to LiViD now. Which would in fact solve the problem of > LiViD's legality. It would just also mean that we could all send Word files > encrypted with CSS. ("Hah! With my 40-bit protection, I can now start my > plans to *conquer the world*..") As long as this distinction is not lost in > court, the PR badness won't be so bad. > > (Hey, who says "Absolutely" in an FAQ? That one word is obvious propaganda, > I'm totally serious. FAQ's aren't emphatic. They say Yes, No, Maybe, Not At > This Time, stuff like that.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 01:12:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA10521 for dvd-discuss-outgoing; Wed, 19 Apr 2000 01:12:38 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA10518 for ; Wed, 19 Apr 2000 01:12:36 -0400 Received: (qmail 2289 invoked by uid 502); 19 Apr 2000 05:14:29 -0000 Date: Wed, 19 Apr 2000 01:14:29 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419011429.V17299@linuxpower.org> References: <20000418170922.C1696@zork.net> <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain>; from sparky on Tue, Apr 18, 2000 at 09:01:04PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 09:01:04PM -0500, sparky wrote: > > Seth wrote: > > > > The DVD CCA would not give a license for an open-source Linux player, > > because the CSS license would forbid issuing a CCA-licensed DVD > > player under an open source license. (As descriptions of software > > licensing terms, the CSS license and the Open Source Definition > > are incompatible.) > > Sorry. This is exactly what I was getting at. The DVD CCA, as a matter of > course, would not ever give a license to LiViD. This means that if you want > to create an open source DVd player through RE, the RE effort also must > break CSS, as that is the only way to create a player which will actually > work. "would not ever" is a bit strong. If LiViD would have played ball, the DVD CCA wouldn't have had grounds to refuse. Note that I'm not suggesting that LiViD *should* have played ball; only that to characterize the DVD CCA has having some sort of vendetta against LiViD is not correct. > > It's also possible that the DVD CCA would not have given a license > > to anyone to write a Linux player _until_ Linux interoperability > > became a controversial issue as a result of Jon Johansen's claim > > that this is why DeCSS was distributed. But can anybody prove this? > > I believe Jon Johansen created DeCSS for *any* OS which did not have DVD > support. Linux is not JJ's favorite OS; he wanted to use it on OpenBSD or > something. (This is in the LiViD archives.) Jon's told me the same. Their general aim was at free OS'es; his particular preference was FreeBSD. Linux was by no means their primary concern. > > Linux interoperability, now, given the existence of a licensed > > player, is not the issue. > > More important than Johansen's intentions - I hope - is that DeCSS was > handed over to the LiViD effort, which was open source. Therefore it is not > about "Linux interoperability", but about the distribution of open source > materials to make an open source player. I'm no longer convinced that MORE's intentions are even relevant. They're not U.S. nationals, the work wasn't done in the U.S. and the current cases aren't about creation of circumvention tech, but distribution. The only way I see that their intentions would be relevant is if somehow they could show that DeCSS wasn't circumvention tech as defined in 1201. > > The DVD CCA knows that, and they are explaining it: > > > > Can manufacturers of products for computers using the Linux > > operating system obtain a license to use CSS to manufacture a DVD > > player for Linux applications? > > > > Absolutely. The DVD Copy Control Association would welcomes > > applications for the legal use of CSS from all manufacturers. In > > fact, Sigma Designs (www.sigmadesigns.com) is now marketing a DVD > > player for Linux under its license to manufacture products using > > CSS. > > > > The press will pay attention to them when they say this. > > What a pile of propaganda. The DVD CCA is making, and hoping that others > make, the same mistake that I made above: equating Linux with open source. > They're saying "Oh, Linux, yes we love Linux!" but ask them if they'll give > a free license to LiViD now. Which would in fact solve the problem of > LiViD's legality. It would just also mean that we could all send Word files > encrypted with CSS. ("Hah! With my 40-bit protection, I can now start my > plans to *conquer the world*..") As long as this distinction is not lost in > court, the PR badness won't be so bad. > > (Hey, who says "Absolutely" in an FAQ? That one word is obvious propaganda, > I'm totally serious. FAQ's aren't emphatic. They say Yes, No, Maybe, Not At > This Time, stuff like that.) Eh, to be fair.. assuming the above quote is verbatim (I haven't checked for myself), the word "Absolutely" can easily be used for this question without it being propaganda, because they're in a position where they can say that. They're the ones cutting licenses. It would only be propaganda if they weren't in a position of absolute authority to make that call. The licenses just so happen to contain a clause that says that you can't hand out the CSS tech; if you do, you're in violation of the license. LiViD could have bought a license (if they could have scraped up the cash) from whoever the DVDCCA was at the time (remember, DVDCCA came into being *after* CSS was broken).. it's highly unlikely that they would have been flatly denied the license had they been willing to sign NDA's and pony up the cash. What they're really doing here is saying, in effect, "if these silly kids would have simply got over their ethics and ideals and played the game, they've have a DVD player by now." If we go into court and whine that they won't give Linux a license, this is what they will say. And the court will agree. > > This point is going to be impossible to dispute. There is going to > > be a proprietary binary-only Linux player. And it's going to be > > an absolute public-relations disaster, unless people stop talking > > only about the non-availability of Linux DVD support. > > > > For that matter, the existence of licensed proprietary Linux players > > is even likely to come up in court, if defendants mention "Linux" > > and "interoperability" in the same sentence. :-( > > I think they're more likely to have to mention how well they complied with > the GPL in their circulation of DeCSS. Argh. I've heard this argument too many times, and it doesn't hold water. If the court finds that DeCSS contains misappropriated intellectual property (keep in mind all versions of DeCSS rely on the Xing key - that's from Jon himself) then it doesn't royally matter whether it's under the GPL or not. If I take a program and distribute it under a license, there is the tacit assumption that I possess the right to issue licenses - i.e. that I own the thing. If I don't own the program, then I have no right to issue licenses and no license issued by myself would mean a damned thing in court. I can take Office 2000, burn a copy, and then sell that copy to you for five bucks under some "license" I write. I don't actually own the program, so the license is worthless paper. If you turn around and give copies to people under the "license" (which for sake of argument says that you may do so), you still are committing a crime. Whether DeCSS is GPL or not is completely immaterial; if the program itself is legal, the licensing doesn't matter. If it is illegal, the licensing doesn't matter. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 01:22:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA10855 for dvd-discuss-outgoing; Wed, 19 Apr 2000 01:22:03 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA10852 for ; Wed, 19 Apr 2000 01:22:02 -0400 Received: (qmail 2547 invoked by uid 502); 19 Apr 2000 05:24:01 -0000 Date: Wed, 19 Apr 2000 01:24:01 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419012401.W17299@linuxpower.org> References: <20000418170922.C1696@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Ken Arromdee on Tue, Apr 18, 2000 at 07:55:36PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 07:55:36PM -0700, Ken Arromdee wrote: > On Tue, 18 Apr 2000, Seth David Schoen wrote: > > It's also possible that the DVD CCA would not have given a license > > to anyone to write a Linux player _until_ Linux interoperability > > became a controversial issue as a result of Jon Johansen's claim > > that this is why DeCSS was distributed. But can anybody prove this? > > Well, Sigma Designs had stated outright that they weren't allowed by the MPAA > to create drivers for the Hollywood Plus because software CSS would be > required, so the MPAA's current position is certainly changed from before. > (And even then, Sigma's board with Linux drivers doesn't need software CSS.) > > Also, the MPAA hasn't "given" a license. They charge for it, and the charge > is out of reach of any private individual. The MPAA has tried to gloss over > that point by claiming that anyone can license CSS because there are no > "royalties", but a fee doesn't have to be a royalty for it to be too big to > pay. The MPAA doesn't charge for licenses; they don't issue licenses. The licenses are put out by the DVD CCA (LMI), which I understand is owned by the Matsushita corporation. Matsushita and the MPAA are not directly related organizations; this is an extremely important point to understand. Matsushita invented the technology and licenses the patents; the MPAA simply represents a collection of content producers. It should be pointed out here that this isn't an outrageous practice in the industry. It is quite the norm. Many supposedly "open" standards are actually heavily licensed and/or dependent on technologies that themselves are heavily patented and licensed. Those technologies which are licensed typically come with a hefty price tag and NDA contracts. >From what I've read (Dana, correct me if I'm wrong), MPEG-2 is a good example of this. Technically it's an "open" standard - but in order to implement it you need a boatload of heavily patented technologies, which themselves are owned by corporations like Matsushita. The industry definition of "open standard", it appears, is not the same as ours. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 01:36:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA11714 for dvd-discuss-outgoing; Wed, 19 Apr 2000 01:36:09 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA11711 for ; Wed, 19 Apr 2000 01:36:08 -0400 Received: (qmail 2906 invoked by uid 502); 19 Apr 2000 05:38:07 -0000 Date: Wed, 19 Apr 2000 01:38:07 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419013807.X17299@linuxpower.org> References: <20000418214941.A21622@thud.reric.net> <000101bfa9b7$cff03b00$537945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000101bfa9b7$cff03b00$537945ce@bugbug.WinNATDomain>; from sparky on Tue, Apr 18, 2000 at 11:29:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 18, 2000 at 11:29:12PM -0500, sparky wrote: > > I have a further question: rereading Bryan's post from yesterday about the > exchange of keys in the DeCSS process, it appears that CSS goes into action > before any of the program gets played. Perhaps I am misunderstanding > something. What happens if CSS isn't decrypted? Does the DVD playing program > run and you see nothing but static or a blank screen, or does it not run and > give you a message "protected files will not play" or something? Isn't it > the latter according to the dvd faq? And, does this not mean that, even > though the program files themselves are not scrambled, CSS prevents the > program as a whole from running? I hope this is correct. CSS preventing the > whole program from running ties CSS to the program quite firmly. If it's true that PC DVD players simply execute DVD program chains, then it would be logical to assume that program chains scrambled by CSS would not execute until they were unscrambled. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 06:31:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA18685 for dvd-discuss-outgoing; Wed, 19 Apr 2000 06:31:07 -0400 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 GAA18668 for ; Wed, 19 Apr 2000 06:31:05 -0400 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 GAA25116; Wed, 19 Apr 2000 06:30:45 -0400 Message-Id: <200004191030.GAA25116@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Tue, 18 Apr 2000 19:51:54 CDT." <000401bfa999$752654c0$e27945ce@bugbug.WinNATDomain> Date: Wed, 19 Apr 2000 06:30:15 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "sparky" writes: : Peter Junger wrote: : > Is a ``Hello World'' program a program? : > : > If it is, then isn't the same code---with the text of War and Peace : > substituted for the string ``Hello World'' also a progrm? : > : > Yet in the latter case data vastly exceeds the instruction? : > : > And if the War and Peace program is a program, does most of it cease to : > be one if one separates the data and the instructions into two separate : > files? Didn't Dykstra, or however his name is spelled, define a program : > as ``algorithm + data''? (And if you have a citation to that quotation, : > I would appreciate seeing it.) : : I don't think that would fly with the court, because all of a sudden : copyrighted works could be reverse engineered, rendering copyright holder's : rights pointless (you will never find a digitally rendered copyrighted work : without there being some instruction set which will play/display it). Also, : legally, programs are instruction sets that produce a result, that is, they : are dynamic. The question here is just whether the data in question is : totally inert, or not. Data acted upon which is also an instruction set : would be a program itself, maybe even part of the acting program, but data : which is not another instruction set is inert and therefore not part of the : instruction set, therefore contributes nothing to the running of the : program. you will probably have counter-examples, so fire away. I don't think that I follow your point. The ability to reverse engineer a copyrighted work doesn't in anyway remove any copyright protection from the work, just as the ability to copy a work doesn't take away any copyright protection from the work. And, in fact, if there wasn't the ability to make copies, there would never have been a copyright act. Nor do I think that your dynamic vs. static point holds up. To the extent that a program is dynamic it is a process, and processes cannot be protected by copyright under the provisions of Section 102(b) of the Copyright Act. And remember that the Copyright Act's definition of program includes both ``instructions'' and ``statements.'' And in any case, reverse engineering is normally applied to machines, not to software, where the term is used only metaphorically, since the ``reverse engineering'' of a program is more like solving a mathematical problem, or decrypting a code, than it is like actually figuring out how a machine works. If one accepts the metaphor, then surely the ``data'' is part of the ``machine'' that is being reverse engineered, just as the non-moving part are part of an actual machine. And even the moving parts of a machine are not dynamic---only their motion is dynamic. -- 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 Wed Apr 19 07:05:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19502 for dvd-discuss-outgoing; Wed, 19 Apr 2000 07:05:04 -0400 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 HAA19499 for ; Wed, 19 Apr 2000 07:05:03 -0400 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 HAA25252; Wed, 19 Apr 2000 07:04:43 -0400 Message-Id: <200004191104.HAA25252@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Tue, 18 Apr 2000 19:51:49 CDT." <000201bfa999$71f16880$e27945ce@bugbug.WinNATDomain> Date: Wed, 19 Apr 2000 07:04:13 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "sparky" writes: : DVDs will be programs if they provide instructions to anything, hardware or : software. The legal definition of program is only that it be a set of : instructions that produce a result; it is immaterial what object it is to : which the instructions are sent. The definition of a computer program in the copyright act is: 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. Note that the first part of the definition refers to ``statements.'' : : However, assuming that your logic is correct, it might help to determine : whether licensed hardware players are "computers". : : I really want to find a legal definition of "computer" (though I wonder if : it will be so broad that legally speaking I'll have to rethink the bread I : cook every morning under the conception of "program"). Does Bloodhound : Taylor have any suggestions where to find one? :) I have been looking for such a definition for years, but I've never found one. There were a couple of evenings many years ago when I was a computer, or at least a computer's assistant, massaging some data that I had collected in my capacity as a gravity observer. -- 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 Wed Apr 19 09:01:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA22421 for dvd-discuss-outgoing; Wed, 19 Apr 2000 09:01:48 -0400 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 JAA22418 for ; Wed, 19 Apr 2000 09:01:46 -0400 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 JAA04688 for ; Wed, 19 Apr 2000 09:01:45 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA13570; Wed, 19 Apr 2000 09:01:44 -0400 (EDT) Date: Wed, 19 Apr 2000 09:01:44 -0400 (EDT) Message-Id: <200004191301.JAA13570@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain> References: <20000418170922.C1696@zork.net> <000601bfa9a3$1e9e08a0$e27945ce@bugbug.WinNATDomain> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky@suba.com writes: > > The DVD CCA would not give a license for an open-source Linux player, > > because the CSS license would forbid issuing a CCA-licensed DVD > > player under an open source license. (As descriptions of software > > licensing terms, the CSS license and the Open Source Definition > > are incompatible.) > > Sorry. This is exactly what I was getting at. The DVD CCA, as a matter of > course, would not ever give a license to LiViD. This means that if you want > to create an open source DVd player through RE, the RE effort also must > break CSS, as that is the only way to create a player which will actually > work. This applies as well, of course, if you want to avoid DVDCCA licensing requirements for any other legitimate reason. It might be a good idea to list those reasons (fees out of the range of private individuals have come up), to avoid the appearance of claiming special legal privileges for open source development... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 10:04:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA24382 for dvd-discuss-outgoing; Wed, 19 Apr 2000 10:04:51 -0400 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 KAA24379 for ; Wed, 19 Apr 2000 10:04:50 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA30026 for ; Wed, 19 Apr 2000 10:04:49 -0400 (EDT) Date: Wed, 19 Apr 2000 10:04:49 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <000101bfa9b7$cff03b00$537945ce@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 Tue, 18 Apr 2000, sparky wrote: > I have a further question: rereading Bryan's post from yesterday about the > exchange of keys in the DeCSS process, it appears that CSS goes into action > before any of the program gets played. Perhaps I am misunderstanding > something. What happens if CSS isn't decrypted? Does the DVD playing program > run and you see nothing but static or a blank screen, or does it not run and > give you a message "protected files will not play" or something? Isn't it > the latter according to the dvd faq? And, does this not mean that, even > though the program files themselves are not scrambled, CSS prevents the > program as a whole from running? I hope this is correct. CSS preventing the > whole program from running ties CSS to the program quite firmly. I'm not really sure what your getting at. Sure, my ATI player complains about "protected" vob files, and then refuses to run, but that could be considered a design choice on the part of ATI programmers. I have used DeCSS on some CSS protected files, so as to aquire a source for testing a sound driver I'm writing for livid. To ensure that the files were, in fact, of interest, I successfully played these unencrypted vobs from my hard disk using the ATI player. Let us assume, however, that, as a design choice, ATI did not inhibit the playing of encrypted vob files. Several thing might result. 1. The player would not be able to read headers relating to mpeg timing, etc, and would refuse to play-> blank screen. 2. The player would read the headers with out performing checksums, leading to unpredictable behavior (crash, damaging the hard disk) 3. The player would successfully play visual static and audio noise, possibly resulting in damage to speaker systems. Option 2 and 3 could have exposed ATI or the makers of Cinemaster (Ravisent?) to liability. It is a standard practice in software development to verify the contents of data before using it in a program. The designers of ATI's player simply adopted this practice. > > Going a step farther, either CSS runs before the program runs, meaning even > though only "data" files are scrambled, CSS inhibits the rest of the > program, or else it runs with the playing program. On this basis can we say > that CSS is as far as the law should be concerned, part of the playing > program? Or perhaps we should understand it this way: it's not as if CSS > runs independently of playing the DVD. In fact, this latter understanding > would probably be all the court needed to hear to drive home that the access > control is part of the playing mechanism. > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 11:48:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28733 for dvd-discuss-outgoing; Wed, 19 Apr 2000 11:48:59 -0400 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 LAA28730 for ; Wed, 19 Apr 2000 11:48:58 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGK01>; Wed, 19 Apr 2000 08:49:27 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1ACC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 08:49:27 -0700 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] ... > > Also, remember, "program = set of instructions that produce a > result" IS the > definition of program we have to work with; there isn't any "could say > technically". Even if we want to create arguments that change this > definition - which I don't personally see a reason for doing, > since this > definition is so broad - it is the defintion we have to start with. > ... > > DVDs will be programs if they provide instructions to > anything, hardware or > software. The legal definition of program is only that it be a set of > instructions that produce a result; it is immaterial what > object it is to > which the instructions are sent. Given this broad of a definition, you could argue that this e-mail is a program, since it has a set of instructions (the headers) that produce a result (delivery of this message to the DVD discussion group). Even a simple ASCII text file contains a set of instructions (the ASCII letter codes) that produce a result (the display of the text) when interpreted by the right software. -- -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 Apr 19 11:59:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29720 for dvd-discuss-outgoing; Wed, 19 Apr 2000 11:59:44 -0400 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 LAA29717 for ; Wed, 19 Apr 2000 11:59:41 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA25458 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 10:59:36 -0500 Date: Wed, 19 Apr 2000 10:59:36 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419105936.A25435@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000418214941.A21622@thud.reric.net> <000101bfa9b7$cff03b00$537945ce@bugbug.WinNATDomain> <20000419013807.X17299@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000419013807.X17299@linuxpower.org>; from greslin@linuxpower.org on Wed, Apr 19, 2000 at 01:38:07AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 01:38:07AM -0400, greslin@linuxpower.org wrote: > On Tue, Apr 18, 2000 at 11:29:12PM -0500, sparky wrote: > > > > I have a further question: rereading Bryan's post from yesterday about the > > exchange of keys in the DeCSS process, it appears that CSS goes into action > > before any of the program gets played. Perhaps I am misunderstanding > > something. What happens if CSS isn't decrypted? Does the DVD playing program > > run and you see nothing but static or a blank screen, or does it not run and > > give you a message "protected files will not play" or something? Isn't it > > the latter according to the dvd faq? And, does this not mean that, even > > though the program files themselves are not scrambled, CSS prevents the > > program as a whole from running? I hope this is correct. CSS preventing the > > whole program from running ties CSS to the program quite firmly. > > If it's true that PC DVD players simply execute DVD program chains, then it > would be logical to assume that program chains scrambled by CSS would not > execute until they were unscrambled. Except that program chains (IFO files) are never scrambled. Nor do you have to go through the drive authentication sequence on a DVD-ROM drive to access them. So CSS never prevents access to program chains. Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 12:40:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01468 for dvd-discuss-outgoing; Wed, 19 Apr 2000 12:40:29 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA01465 for ; Wed, 19 Apr 2000 12:40:25 -0400 Message-ID: <20000419163952.4953.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 19 Apr 2000 09:39:52 PDT Date: Wed, 19 Apr 2000 09:39:52 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] interoperability (RE redux) 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: > I don't think that would fly with the court, because all of a sudden > copyrighted works could be reverse engineered, rendering copyright holder's > rights pointless (you will never find a digitally rendered copyrighted work > without there being some instruction set which will play/display it). Actually, this is already the law - all copyrighted works CAN be reverse engineered. They just can't be COPIED - there is a difference. Reverse engineering means analysis intended to uncover the underlying IDEA. Ideas are not copyrightable. For example, a math text can be 'reverse engineered' - you puzzle through what it is saying, understand the ideas, and then write your own original expression of the same ideas. In fact, when there is only one natural way to express the ideas, the 'merger doctrine' will exempt this from copyright infringement claims. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:09:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02595 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:09:46 -0400 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 NAA02551 for ; Wed, 19 Apr 2000 13:09:43 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGL12>; Wed, 19 Apr 2000 10:10:21 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 10:10:16 -0700 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: Eric Seppanen [mailto:eds@reric.net] .. > That's not what I meant at all. 1201(f) does not say that bypassing > access controls is OK in order to achieve interoperability. > That would be > great if it did. Instead, it says that you may bypass access controls > that protect a program for the purpose of interoperability. ]1201(f)(2): "[...] a person may develop and employ technological means to ]circumvent a technological measure, or to circumvent protection afforded by ]a technological measure, in order to enable the identification and analysis ]under paragraph (1), or 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." This just talks about "circumventing a technological measure or protection afforded by a technological measure" but says nothing about whether that measure is one "that protects a program" or not. Where do you see that extra requirement? -- -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 Apr 19 13:12:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02906 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:12:30 -0400 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 NAA02902 for ; Wed, 19 Apr 2000 13:12:28 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGL1M>; Wed, 19 Apr 2000 10:13:11 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1ACE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 10:13:06 -0700 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] > ... > > Ah. After rereading 1201(f)(1), I have to agree with you. The > real sticker > is just 7 words: "may circumvent a technological measure that > effectively > controls access *to a particular portion of that program* [ > ...]" (Actually > it's just one word, "that".) The language of the clause > forces an RE defense > to adopt some fancy footwork.. This sounds like a job for Superlawyer. > Why are you focussing on (f)(1) when (f)(2) seems to let us through w/o the "that program" restriction? Remember, I am not a laywer ... is there something we need from (f)(1) that (f)(2) could not be used for? -- -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 Apr 19 13:20:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03263 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:20:31 -0400 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 NAA03260 for ; Wed, 19 Apr 2000 13:20:29 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA25709 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 12:20:28 -0500 Date: Wed, 19 Apr 2000 12:20:27 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419122027.A25690@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Apr 19, 2000 at 10:10:16AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 10:10:16AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Eric Seppanen [mailto:eds@reric.net] > .. > > That's not what I meant at all. 1201(f) does not say that bypassing > > access controls is OK in order to achieve interoperability. > > That would be > > great if it did. Instead, it says that you may bypass access controls > > that protect a program for the purpose of interoperability. > > > ]1201(f)(2): "[...] a person may develop and employ technological means to > ]circumvent a technological measure, or to circumvent protection afforded by > ]a technological measure, in order to enable the identification and analysis > ]under paragraph (1), or 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." > > This just talks about "circumventing a technological measure or protection > afforded by a technological measure" but says nothing about whether that > measure is one "that protects a program" or not. Where do you see that > extra requirement? Paragraph 1 has that requirement, and then paragraph 2 says "...in order to enable the identification and analysis under paragraph (1)". This seems to be saying, you can do Y, but only if it's part of doing X. Since we can't demonstrate that X meets 1201(f)(1), doesn't the whole argument fail? The legalese in paragraph 2 is a little thick for me, so please explain to me if I'm misreading it somehow... Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:30:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03819 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:30:57 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA03816 for ; Wed, 19 Apr 2000 13:30:56 -0400 Message-ID: <20000419173025.15024.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 19 Apr 2000 10:30:25 PDT Date: Wed, 19 Apr 2000 10:30:25 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] interoperability (RE redux) 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 --- "Peter D. Junger" wrote: > "sparky" writes: > : I really want to find a legal definition of "computer" (though I wonder if > : it will be so broad that legally speaking I'll have to rethink the bread I > : cook every morning under the conception of "program"). Does Bloodhound > : Taylor have any suggestions where to find one? :) > > I have been looking for such a definition for years, but I've never found > one. There were a couple of evenings many years ago when I was a computer, > or at least a computer's assistant, massaging some data that I had > collected in my capacity as a gravity observer. I suspect this is an example where the courts would try to adopt a layman's definition. For example: http://www.dictionary.com/cgi-bin/dict.pl?db=*&term=computer A search of the US code didn't reveal anything. A caselaw search on jurisline turned up a lot of "definitions of computer program" hits, but I didn't see any of just "computer". I stumbled across something I'd read before in Apple v. Franklin 714 F.2d 1240, which interprets (favorably) the copyrightability of object code. This leads me back to a question I asked earlier - doesn't copyrightability imply First Amendment protection. After all, copyright depends on 'original expression'. Was this point raised in Junger or Bernstein? If you say that source code and/or object code aren't expressive, wouldn't that invalidate every software copyright out there? __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:36:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04163 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:36:12 -0400 Received: from mta137.mail.yahoo.com (mta137.mail.yahoo.com [128.11.68.96]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA04160 for ; Wed, 19 Apr 2000 13:36:10 -0400 From: bassmunkyness@yahoo.com Message-ID: <20000419173605.5685.qmail@mta137.mail.yahoo.com> Date: Wed, 19 Apr 2000 10:36:05 -0700 (PDT) Subject: [dvd-discuss] Yahoo! Auto Response To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am a ho, you are my bitch. leave a message after the beep. -------------------- Original Message: From majordomo-owner@eon.law.harvard.edu Wed Apr 19 17:36:00 2000 Return-Path: X-Track2: 2 X-Track: 1: 40 Received: from eon.law.harvard.edu (140.247.200.71) by mta137.mail.yahoo.com with SMTP; 19 Apr 2000 17:35:57 -0000 Received: from localhost (mail@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA03341; Wed, 19 Apr 2000 13:21:57 -0400 Received: by eon.law.harvard.edu (bulk_mailer v1.5); Wed, 19 Apr 2000 17:20:31 +0000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03263 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:20:31 -0400 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 NAA03260 for ; Wed, 19 Apr 2000 13:20:29 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA25709 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 12:20:28 -0500 Date: Wed, 19 Apr _________________________________________________________ DO YOU YAHOO!? Get your free @yahoo.com address at http://mail.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:37:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04246 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:37:41 -0400 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 NAA04242 for ; Wed, 19 Apr 2000 13:37:38 -0400 Received: (from paul@localhost) by dial244.roadrunner.com (8.8.7/8.8.7) id LAA02065 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 11:41:35 -0600 Date: Wed, 19 Apr 2000 11:41:34 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419114134.A1924@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Apr 19, 2000 at 10:10:16AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 10:10:16AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Eric Seppanen [mailto:eds@reric.net] > .. > > That's not what I meant at all. 1201(f) does not say that bypassing > > access controls is OK in order to achieve interoperability. > > That would be > > great if it did. Instead, it says that you may bypass access controls > > that protect a program for the purpose of interoperability. > > > ]1201(f)(2): "[...] a person may develop and employ technological means to > ]circumvent a technological measure, or to circumvent protection afforded by > ]a technological measure, in order to enable the identification and analysis > ]under paragraph (1), or 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." > > This just talks about "circumventing a technological measure or protection > afforded by a technological measure" but says nothing about whether that > measure is one "that protects a program" or not. Where do you see that > extra requirement? I think the, "to enable the identification and analysis under paragraph (1)," is referencing (in part), "a person who has lawfully obtained the right to use a copy of a computer program," from 1201(f)(1). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:52:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04950 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:52:45 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA04946 for ; Wed, 19 Apr 2000 13:52:38 -0400 Message-ID: <20000419175201.8739.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 19 Apr 2000 10:52:01 PDT Date: Wed, 19 Apr 2000 10:52:01 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] EFF Question 6 - Clickwrap Contracts 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 been quietly studying clickwrap contracts offline for a while now. I want to share my work so far with the group. http://bioinformatics.ucsf.edu/bwtaylor/dvd/EFF_questions/Q6_clickwrap/ The outline consists of many position-neutral questions. The next work to be done is to provide answers to the questions in the outline. Many, but certainly not all of these questions are addressed by the other references on the page. After my short study here, I see a very disturbing parallel between the use of mass contracts and the use of technological access control measures. Both have the potential to destroy the 'delicate balance' of copyright protection. Unlike access control, there is a lot of judical precedent new and old governing the use of copyright contracts, even in click/shrink wrap contexts. The problem here is that different courts have ruled different ways. For example, the Step-Saver decision seems directly opposed to the ProCD decision on whether a contract is formed. The Vault decision seems directly opposed to ProCD on whether federal copyright law can preemt contractual terms in the scope of copyright. There are lots of confusing issues to sort out. However it goes, the CA case will almost certainly create a "tie-breaker" precedent on several important issues. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:54:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05078 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:54:40 -0400 Received: from arh1176 (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05075 for ; Wed, 19 Apr 2000 13:54:39 -0400 Received: by arh1176 (Postfix, from userid 1000) id 1265E7255; Wed, 19 Apr 2000 12:54:44 -0500 (CDT) Date: Wed, 19 Apr 2000 12:54:44 -0500 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419125444.A28680@arh1176> References: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com> <20000419122027.A25690@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.1.9i In-Reply-To: <20000419122027.A25690@thud.reric.net>; from eds@reric.net on Wed, Apr 19, 2000 at 12:20:27PM -0500 From: steve@arh1176.arh1176 (Steven Barker) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 12:20:27PM -0500, Eric Seppanen wrote: > On Wed, Apr 19, 2000 at 10:10:16AM -0700, Richard Hartman wrote: > > ]1201(f)(2): "[...] a person may develop and employ technological means to > > ]circumvent a technological measure, or to circumvent protection afforded by > > ]a technological measure, in order to enable the identification and analysis > > ]under paragraph (1), or 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." > > > > This just talks about "circumventing a technological measure or protection > > afforded by a technological measure" but says nothing about whether that > > measure is one "that protects a program" or not. Where do you see that > > extra requirement? > > Paragraph 1 has that requirement, and then paragraph 2 says "...in order > to enable the identification and analysis under paragraph (1)". This > seems to be saying, you can do Y, but only if it's part of doing X. Since > we can't demonstrate that X meets 1201(f)(1), doesn't the whole argument > fail? 1201(f)(1) only applies to the actual performance of RE (identification and analysis), not the final product. DeCSS is the product of the reverse engineering done by MoRE, which is largely irrelevant to this arguement. The second clause is the important part for this. DeCSS is the "means to circumvent a technological measure" which allows the program content of the DVD (the .ifo files) to interoperate meaningfully with a mpeg player. As a part of their interoperation, they exchange data: the .vob files. DeCSS allows this exchange to be meaningful by translating the .vob files into a format that the mpeg player can understand. This circumvention is necessary because an open source mpeg player cannot understand the scrambled .vob file and no official program exists to descramble the vob files. > The legalese in paragraph 2 is a little thick for me, so please explain to > me if I'm misreading it somehow... I think you just applied the wrong part of it. But I could be misinterpreting it as well, as legal analysis is certainly not something I have that much knowledge of. Steve, who has got to get his .sig back online again From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 13:57:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05239 for dvd-discuss-outgoing; Wed, 19 Apr 2000 13:57:00 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA05233 for ; Wed, 19 Apr 2000 13:56:58 -0400 Message-ID: <20000419175627.9476.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 19 Apr 2000 10:56:27 PDT Date: Wed, 19 Apr 2000 10:56:27 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] interoperability (RE redux) 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 --- Richard Hartman wrote: > Why are you focussing on (f)(1) when (f)(2) seems to let us > through w/o the "that program" restriction? Remember, I am > not a laywer ... is there something we need from (f)(1) that > (f)(2) could not be used for? Also note that (f)(1) isn't really needed until (a)(1) takes affect. Clause (f)(2) has two parts: the first part (before the "or") refers and extends the (f)(1) exception. The second part (after the "or") stands alone and has little to do with the "part of the computer program" stuff. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 14:03:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05655 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:03:51 -0400 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 OAA05652 for ; Wed, 19 Apr 2000 14:03:49 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGLGY>; Wed, 19 Apr 2000 11:04:28 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1ACF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 11:04:22 -0700 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: Eric Seppanen [mailto:eds@reric.net] > Sent: Wednesday, April 19, 2000 10:20 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] interoperability (RE redux) > > > On Wed, Apr 19, 2000 at 10:10:16AM -0700, Richard Hartman wrote: > > > > > > > -----Original Message----- > > > From: Eric Seppanen [mailto:eds@reric.net] > > .. > > > That's not what I meant at all. 1201(f) does not say > that bypassing > > > access controls is OK in order to achieve interoperability. > > > That would be > > > great if it did. Instead, it says that you may bypass > access controls > > > that protect a program for the purpose of interoperability. > > > > > > ]1201(f)(2): "[...] a person may develop and employ > technological means to > > ]circumvent a technological measure, or to circumvent > protection afforded by > > ]a technological measure, in order to enable the > identification and analysis > > ]under paragraph (1), or 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." > > > > This just talks about "circumventing a technological > measure or protection > > afforded by a technological measure" but says nothing about > whether that > > measure is one "that protects a program" or not. Where do > you see that > > extra requirement? > > Paragraph 1 has that requirement, and then paragraph 2 says > "...in order > to enable the identification and analysis under paragraph (1)". This > seems to be saying, you can do Y, but only if it's part of > doing X. Since > we can't demonstrate that X meets 1201(f)(1), doesn't the > whole argument > fail? > > The legalese in paragraph 2 is a little thick for me, so > please explain to > me if I'm misreading it somehow... > But it says "...in order to enable the identification and analysis under paragraph (1), OR for the purpose of ^^ enabling interoperability of an independently created computer program..." As far as I can tell, this means we don't care what (1) says if our purpose is to create an independant computer program that needs RE to enable interoperability. Am I missing something here? (The legalese is thick for all of us ;-) -- -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 Apr 19 14:06:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05850 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:06:20 -0400 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 OAA05847 for ; Wed, 19 Apr 2000 14:06:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGLG5>; Wed, 19 Apr 2000 11:07:01 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AD0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 11:07:00 -0700 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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Wednesday, April 19, 2000 10:56 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > --- Richard Hartman wrote: > > > Why are you focussing on (f)(1) when (f)(2) seems to let us > > through w/o the "that program" restriction? Remember, I am > > not a laywer ... is there something we need from (f)(1) that > > (f)(2) could not be used for? > > Also note that (f)(1) isn't really needed until (a)(1) takes affect. > > Clause (f)(2) has two parts: the first part (before the "or") > refers and > extends the (f)(1) exception. The second part (after the > "or") stands alone and > has little to do with the "part of the computer program" stuff. > That's what I was thinking... -- -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 Apr 19 14:06:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05869 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:06:34 -0400 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 OAA05866 for ; Wed, 19 Apr 2000 14:06:30 -0400 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 OAA26809; Wed, 19 Apr 2000 14:05:16 -0400 Message-Id: <200004191805.OAA26809@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Wed, 19 Apr 2000 10:30:25 PDT." <20000419173025.15024.qmail@web512.mail.yahoo.com> Date: Wed, 19 Apr 2000 14:04:46 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: : I stumbled across something I'd read before in Apple v. Franklin 714 F.2d 124 : 0, : which interprets (favorably) the copyrightability of object code. This leads : me : back to a question I asked earlier - doesn't copyrightability imply First : Amendment protection. After all, copyright depends on 'original expression'. : : Was this point raised in Junger or Bernstein? I don't believe so, except perhaps peripherially in Bernstein. : If you say that source code : and/or object code aren't expressive, wouldn't that invalidate every software : copyright out there? The trouble is that the meaning of ``expressive'' may differ in copyright law and in the law of the First Amendment. But I must admit that I've always liked your argument. I think there are some who did not want me to win, because that would seem to legitimize copyrights on software. -- 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 Wed Apr 19 14:12:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06197 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:12:28 -0400 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 OAA06194 for ; Wed, 19 Apr 2000 14:12:24 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA25863 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 13:12:19 -0500 Date: Wed, 19 Apr 2000 13:12:19 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419131219.A25836@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000419175627.9476.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000419175627.9476.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Apr 19, 2000 at 10:56:27AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 10:56:27AM -0700, Bryan Taylor wrote: > --- Richard Hartman wrote: > > > Why are you focussing on (f)(1) when (f)(2) seems to let us > > through w/o the "that program" restriction? Remember, I am > > not a laywer ... is there something we need from (f)(1) that > > (f)(2) could not be used for? > > Also note that (f)(1) isn't really needed until (a)(1) takes affect. > > Clause (f)(2) has two parts: the first part (before the "or") refers and > extends the (f)(1) exception. The second part (after the "or") stands alone and > has little to do with the "part of the computer program" stuff. I see what you mean, and I guess this changes my view of things. The "or" seems to say, forget (f)(1), as long as you can establish that the RE is necessary to "[enable] interoperability of an independently created computer program with other programs", you're exempt from (a)(2)! Thanks for the explanation. Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 14:20:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06532 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:20:56 -0400 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 OAA06529 for ; Wed, 19 Apr 2000 14:20:55 -0400 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 OAA15150 for ; Wed, 19 Apr 2000 14:20:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA15166; Wed, 19 Apr 2000 14:20:54 -0400 (EDT) Date: Wed, 19 Apr 2000 14:20:54 -0400 (EDT) Message-Id: <200004191820.OAA15166@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1ACC@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1ACC@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Given this broad of a definition, you could argue that > this e-mail is a program, since it has a set of instructions > (the headers) that produce a result (delivery of this message > to the DVD discussion group). Actually, if the message is being delivered via SMTP (the internet standard mail transfer protocol), the message headers don't control delivery directly. Instead, there's a separate list of recipients given in the "RCPT TO" SMTP command which determines how the email actually gets delivered. This is how a "bcc:" can cause email to be delivered to a party who isn't named at all in the message headers, for example --- your Mail User Agent names that party in the RCPT TO command ("on the envelope", it's sometimes called), but leaves their address out of the message itself. > Even a simple ASCII text file contains a set of instructions > (the ASCII letter codes) that produce a result (the display > of the text) when interpreted by the right software. Careful --- this way lies the "HTML is a program" argument that the MPAA is trying to advance to get an injunction against linking to mirrors... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 14:47:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09342 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:47:24 -0400 Received: from dial91.roadrunner.com (dial91.cybermesa.com [209.12.75.91]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA09339 for ; Wed, 19 Apr 2000 14:47:15 -0400 Received: (from paul@localhost) by dial91.roadrunner.com (8.8.7/8.8.7) id MAA02882 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 12:51:16 -0600 Date: Wed, 19 Apr 2000 12:51:15 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419125115.A2750@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1ACD@mail2.onetouch.com> <20000419122027.A25690@thud.reric.net> <20000419125444.A28680@arh1176> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000419125444.A28680@arh1176>; from steve@arh1176.arh1176 on Wed, Apr 19, 2000 at 12:54:44PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 12:54:44PM -0500, Steven Barker wrote: [ ... ] > 1201(f)(1) only applies to the actual performance of RE (identification and > analysis), not the final product. DeCSS is the product of the reverse > engineering done by MoRE, which is largely irrelevant to this arguement. > The second clause is the important part for this. DeCSS is the "means to > circumvent a technological measure" which allows the program content of the > DVD (the .ifo files) to interoperate meaningfully with a mpeg player. As > a part of their interoperation, they exchange data: the .vob files. DeCSS > allows this exchange to be meaningful by translating the .vob files into a > format that the mpeg player can understand. This circumvention is necessary > because an open source mpeg player cannot understand the scrambled .vob > file and no official program exists to descramble the vob files. Does anyone know if "exchange information" in (f)(4) includes a one-way stream of data as well as back and forth? Yes, I know this would be an idiotic result of the law if there is a difference, but it wouldn't be the first such result. My unabridged dictionary doesn't give any meanings for exchange that are one-way. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 14:59:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09771 for dvd-discuss-outgoing; Wed, 19 Apr 2000 14:59:57 -0400 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 OAA09768 for ; Wed, 19 Apr 2000 14:59:56 -0400 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 OAA14977 for ; Wed, 19 Apr 2000 14:59:55 -0400 (EDT) Message-Id: <4.2.2.20000419131757.00d29250@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 19 Apr 2000 14:59:47 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000419163952.4953.qmail@web512.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 09:39 AM 4/19/00 -0700, bryan_w_taylor@yahoo.com wrote: >--- sparky wrote: > > > I don't think that would fly with the court, because all of a sudden > > copyrighted works could be reverse engineered, rendering copyright holder's > > rights pointless (you will never find a digitally rendered copyrighted work > > without there being some instruction set which will play/display it). > >Actually, this is already the law - all copyrighted works CAN be reverse >engineered. They just can't be COPIED - there is a difference. Reverse >engineering means analysis intended to uncover the underlying IDEA. Ideas are >not copyrightable. I like this line of argument. We're not trying to claim a new right, but to preserve an old one against the encroachment of new technology. We've always been able to look at the way a copyrighted work is constructed and to take its non-expressive elements for other uses -- and when those functional elements are now barricaded behind access controls, we should still have that right. It's similar to the concerns expressed by some researchers (MIT Media Lab, I think) in LOC comments, that they might have an electronic database of all of an author's texts but be prevented from running a word frequency analysis. >For example, a math text can be 'reverse engineered' - you puzzle through what >it is saying, understand the ideas, and then write your own original >expression >of the same ideas. In fact, when there is only one natural way to express the >ideas, the 'merger doctrine' will exempt this from copyright infringement >claims. 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 Wed Apr 19 15:01:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09903 for dvd-discuss-outgoing; Wed, 19 Apr 2000 15:01:16 -0400 Received: from arh1176 (arh1176.urh.uiuc.edu [130.126.68.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09900 for ; Wed, 19 Apr 2000 15:01:15 -0400 Received: by arh1176 (Postfix, from userid 1000) id 00A5C7255; Wed, 19 Apr 2000 14:01:19 -0500 (CDT) Date: Wed, 19 Apr 2000 14:01:19 -0500 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419140119.A28943@arh1176> References: <5A8391CA2D9ED311AFAA080009D982B10B1ACF@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.1.9i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1ACF@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Apr 19, 2000 at 11:04:22AM -0700 From: steve@arh1176.arh1176 (Steven Barker) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 11:04:22AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Eric Seppanen [mailto:eds@reric.net] > > On Wed, Apr 19, 2000 at 10:10:16AM -0700, Richard Hartman wrote: > > > > > > ]1201(f)(2): "[...] a person may develop and employ > > technological means to > > > ]circumvent a technological measure, or to circumvent > > protection afforded by > > > ]a technological measure, in order to enable the > > identification and analysis > > > ]under paragraph (1), or 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." > > > > > > This just talks about "circumventing a technological > > measure or protection > > > afforded by a technological measure" but says nothing about > > whether that > > > measure is one "that protects a program" or not. Where do > > you see that > > > extra requirement? > > > > Paragraph 1 has that requirement, and then paragraph 2 says > > "...in order > > to enable the identification and analysis under paragraph (1)". This > > seems to be saying, you can do Y, but only if it's part of > > doing X. Since > > we can't demonstrate that X meets 1201(f)(1), doesn't the > > whole argument > > fail? > > > > The legalese in paragraph 2 is a little thick for me, so > > please explain to > > me if I'm misreading it somehow... > > > > But it says "...in order to enable the identification and > analysis under paragraph (1), OR for the purpose of > ^^ > enabling interoperability of an independently created > computer program..." > > As far as I can tell, this means we don't care what (1) > says if our purpose is to create an independant computer > program that needs RE to enable interoperability. Am I > missing something here? (The legalese is thick for > all of us ;-) I think it is even broader than your interpretation. The paragraph is saying when it is permitted to circumvent "a technological measure," as long as it is required to achieve interoperability. Developing or creating a means to do this circumvention is what is exempted here, as long as it is not infringement. Since the circumvention DeCSS does (assuming it is actually "circumvention") is necessary to allow mpeg players from understanding the data on the DVD it qualifies for interoperability. Since making a copy of a work for personal use can be a fair use, it is not infringing. So 1201(f)(2) would seem to protect the creation of DeCSS, and it's use to decrypt DVDs. It's distribution should be protected by 1201(f)(3) but I don't have a copy of that handy at the moment to quote... Correct me if that is wrong. Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 15:08:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA10241 for dvd-discuss-outgoing; Wed, 19 Apr 2000 15:08:03 -0400 Received: from hotmail.com (f323.law8.hotmail.com [216.33.240.198]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA10214 for ; Wed, 19 Apr 2000 15:06:57 -0400 Received: (qmail 7198 invoked by uid 0); 19 Apr 2000 19:02:50 -0000 Message-ID: <20000419190250.7197.qmail@hotmail.com> Received: from 208.41.124.53 by www.hotmail.com with HTTP; Wed, 19 Apr 2000 12:02:50 PDT X-Originating-IP: [208.41.124.53] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 19:02:50 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 So then what are HTML pages with javascript in them? Richard Careful --- this way lies the "HTML is a program" argument that the MPAA is trying to advance to get an injunction against linking to mirrors... rst ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 16:28:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14811 for dvd-discuss-outgoing; Wed, 19 Apr 2000 16:28:09 -0400 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 QAA14808 for ; Wed, 19 Apr 2000 16:28:08 -0400 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 QAA01665 for ; Wed, 19 Apr 2000 16:28:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA15990; Wed, 19 Apr 2000 16:28:07 -0400 (EDT) Date: Wed, 19 Apr 2000 16:28:07 -0400 (EDT) Message-Id: <200004192028.QAA15990@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000419190250.7197.qmail@hotmail.com> References: <20000419190250.7197.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Ramos writes: > So then what are HTML pages with javascript in them? Javascript is indisputably code --- but IIRC the MPAA was trying to argue that is a "program" as well... and that is disputable. rst > Careful --- this way lies the "HTML is a program" argument that the > MPAA is trying to advance to get an injunction against linking to > mirrors... > > rst > > ______________________________________________________ > Get Your Private, Free Email at http://www.hotmail.com > > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 16:45:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15527 for dvd-discuss-outgoing; Wed, 19 Apr 2000 16:45:32 -0400 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 QAA15524 for ; Wed, 19 Apr 2000 16:45:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGLN0>; Wed, 19 Apr 2000 13:46:03 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AD2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 13:46:02 -0700 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] > Sent: Wednesday, April 19, 2000 11:21 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > Richard Hartman writes: > > Given this broad of a definition, you could argue that > > this e-mail is a program, since it has a set of instructions > > (the headers) that produce a result (delivery of this message > > to the DVD discussion group). > > > Actually, if the message is being delivered via SMTP (the internet > standard mail transfer protocol), the message headers don't control > delivery directly. Instead, there's a separate list of recipients > given in the "RCPT TO" SMTP command which determines how the email > actually gets delivered. This is how a "bcc:" can cause email to be > delivered to a party who isn't named at all in the message headers, > for example --- your Mail User Agent names that party in the RCPT TO > command ("on the envelope", it's sometimes called), but leaves their > address out of the message itself. > > > > Even a simple ASCII text file contains a set of instructions > > (the ASCII letter codes) that produce a result (the display > > of the text) when interpreted by the right software. > > Careful --- this way lies the "HTML is a program" argument that the > MPAA is trying to advance to get an injunction against linking to > mirrors... > > rst > This way also lies the "one man's data is another man's program" and verse vica. All programs are data ... and all data can be considered to be programs given that they contain "instructions" which produce results -when interpreted in the correct environment-. It could be a way of proving that the current legal definition of "program" is invalid to the point of absurdity and getting the court to throw it out in favor of some new definition... -- -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 Apr 19 18:50:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22485 for dvd-discuss-outgoing; Wed, 19 Apr 2000 18:50:17 -0400 Received: from hotmail.com (f128.law8.hotmail.com [216.33.241.128]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA22482 for ; Wed, 19 Apr 2000 18:50:16 -0400 Received: (qmail 76684 invoked by uid 0); 19 Apr 2000 22:49:45 -0000 Message-ID: <20000419224945.76683.qmail@hotmail.com> Received: from 208.41.124.53 by www.hotmail.com with HTTP; Wed, 19 Apr 2000 15:49:45 PDT X-Originating-IP: [208.41.124.53] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 22:49:45 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: Richard Hartman Reply-To: dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 13:46:02 -0700 > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Wednesday, April 19, 2000 11:21 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > Richard Hartman writes: > > Given this broad of a definition, you could argue that > > this e-mail is a program, since it has a set of instructions > > (the headers) that produce a result (delivery of this message > > to the DVD discussion group). > > > Actually, if the message is being delivered via SMTP (the internet > standard mail transfer protocol), the message headers don't control > delivery directly. Instead, there's a separate list of recipients > given in the "RCPT TO" SMTP command which determines how the email > actually gets delivered. This is how a "bcc:" can cause email to be > delivered to a party who isn't named at all in the message headers, > for example --- your Mail User Agent names that party in the RCPT TO > command ("on the envelope", it's sometimes called), but leaves their > address out of the message itself. > > > > Even a simple ASCII text file contains a set of instructions > > (the ASCII letter codes) that produce a result (the display > > of the text) when interpreted by the right software. > > Careful --- this way lies the "HTML is a program" argument that the > MPAA is trying to advance to get an injunction against linking to > mirrors... > > rst > This way also lies the "one man's data is another man's program" and verse vica. All programs are data ... and all data can be considered to be programs given that they contain "instructions" which produce results -when interpreted in the correct environment-. It could be a way of proving that the current legal definition of "program" is invalid to the point of absurdity and getting the court to throw it out in favor of some new definition... Here, here. Richard -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 22:11:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16397 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:11:52 -0400 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 WAA16394 for ; Wed, 19 Apr 2000 22:11:50 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA21334 for ; Wed, 19 Apr 2000 21:11:46 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:11:05 -0500 Message-ID: <000001bfaa6d$af1661a0$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: <200004191030.GAA25116@samsara.law.cwru.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 Peter Junger wrote: > > "sparky" writes: > > : I don't think that would fly with the court, because all of a sudden > : copyrighted works could be reverse engineered, rendering > copyright holder's > : rights pointless (you will never find a digitally rendered > copyrighted work > : without there being some instruction set which will > play/display it). Also, > : legally, programs are instruction sets that produce a result, > that is, they > : are dynamic. The question here is just whether the data in question is > : totally inert, or not. Data acted upon which is also an instruction set > : would be a program itself, maybe even part of the acting > program, but data > : which is not another instruction set is inert and therefore not > part of the > : instruction set, therefore contributes nothing to the running of the > : program. you will probably have counter-examples, so fire away. > > I don't think that I follow your point. The ability to reverse engineer > a copyrighted work doesn't in anyway remove any copyright protection from > the work, just as the ability to copy a work doesn't take away > any copyright > protection from the work. And, in fact, if there wasn't the > ability to make > copies, there would never have been a copyright act. My thought was that a work is coded digitally, either as a single file or as multiple files - as one piece or in several pieces, so to speak - and this would be data. As data, it does nothing. It would not be a set of instructions or statements which can produce a result. Something else could use this data to produce a result - and instance of the work which had been coded digitally. As data the RE exemption is not to apply to the work. Your response to this would be that your original statement (snipped) is that the program is algorithm (or, instructions) + data; and that RE of a program would also include RE of data. I think I agree with you, if "data" is understood in an abstract way; say, the format of the data, something like that. Then the def of program as alg. + data makes much sense. But I don't think we could say that a specific data set is part of a program, because it is not a set of instructions; it is what the instruction set reads. Even if the data in question were the only data set in existence that a given program could read, the program is still unchanged if you take it away. It will just do nothing. I'd just like to also point out that I have no idea what the court would think, so I've basically realized I'm just sort of throwing this interpretation out there. Would the court say that a program is just the instructions? the instructions + data format? the instructions + an actual specific data set? > > Nor do I think that your dynamic vs. static point holds up. To the extent > that a program is dynamic it is a process, and processes cannot > be protected > by copyright under the provisions of Section 102(b) of the Copyright Act. > > And remember that the Copyright Act's definition of program includes both > ``instructions'' and ``statements.'' I am not referring to 1201 as I say this, but: I suspect these two terms are just there to catch instances of what the law considers to be the same thing. The really important part of the def is the "produces a result" part. That's the only thing I'm referring to when I call a program "dynamic". It does something, it acts on something (data). Data is not dynamic; it does not act on anything (unless it is also an instruction set, but then it is not just data, it is also a program). Dynamic doesn't mean "moving", in response to your comment below. > > And in any case, reverse engineering is normally applied to machines, > not to software, where the term is used only metaphorically, since > the ``reverse engineering'' of a program is more like solving a > mathematical > problem, or decrypting a code, than it is like actually figuring out how > a machine works. If one accepts the metaphor, then surely the ``data'' > is part of the ``machine'' that is being reverse engineered, just as the > non-moving part are part of an actual machine. And even the moving > parts of a machine are not dynamic---only their motion is dynamic. I think the metaphor is not too off-base, as RE is analyzing a structure. The machine is a physical structure, the program is a logical one. Both function given the proper environmental conditions (I mean, such as proper fuel or "fuel", etc). If we're going to be strict about metaphor, let's be honest, the whole "reverse" thing is itself a big fat metaphor. Nobody is running anything backward, not literally. You are starting with a resultant state and you use analysis to determine how that state arose. Then you can create something which does those things to produce that state. This is not literally "reverse". As to accepting that data is part of the program when you accept the metaphor - I don't know, possibly. It might lead to accepting that string is part of a loom, though. If it comes to arguing that data is part of a program in court, I think we should be prepared to have that taken from us. The plaintiff lawyers might be stupid, but if they aren't they will easily come up with analogies to argue that data is not part of the program - the string/loom is only one. On our side, are there any analogies that say what Peter is saying? > > -- > 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 Wed Apr 19 22:23:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16648 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:23:59 -0400 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 WAA16645 for ; Wed, 19 Apr 2000 22:23:58 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA21722 for ; Wed, 19 Apr 2000 21:23:55 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:23:15 -0500 Message-ID: <000101bfaa6f$622d7020$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: <5A8391CA2D9ED311AFAA080009D982B10B1ACC@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 wrote: > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > ... > > > > Also, remember, "program = set of instructions that produce a > > result" IS the > > definition of program we have to work with; there isn't any "could say > > technically". Even if we want to create arguments that change this > > definition - which I don't personally see a reason for doing, > > since this > > definition is so broad - it is the defintion we have to start with. > > > ... > > > > DVDs will be programs if they provide instructions to > > anything, hardware or > > software. The legal definition of program is only that it be a set of > > instructions that produce a result; it is immaterial what > > object it is to > > which the instructions are sent. > > Given this broad of a definition, you could argue that > this e-mail is a program, since it has a set of instructions > (the headers) that produce a result (delivery of this message > to the DVD discussion group). > > Even a simple ASCII text file contains a set of instructions > (the ASCII letter codes) that produce a result (the display > of the text) when interpreted by the right software. The def lends itself to parody. I think if I were to adjust the def (striving to be fair) I would say that the ASCII is not a program, even though it is a set of instructions, because it can't produce a result on its own. However, neither can an application produce a result on its own. Obviously, there must be something for it to read. Hm. Maybe this thought experiment would show why Peter is right, and we must consider data, at least the "instructions" coded into data, as part of the program. These "instructions" are like a data format. They tell the program how to act. Hm, that's a switch.. Now the data is telling the program how to act. but obviously it is what happens. So now I've convinced myself Peter is right. This is great. We're finding all the places where all the definitions fall apart. Too bad it doesn't lend itself to defense. Wendy, can you say whether a strategy for the defense would include poking holes in definitions like this one to the point, would that be a valid part of an attack on 1201's validity? sparky > > -- > -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 Apr 19 22:24:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16663 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:24:02 -0400 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 WAA16659 for ; Wed, 19 Apr 2000 22:24:01 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA21725 for ; Wed, 19 Apr 2000 21:23:58 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:23:17 -0500 Message-ID: <000201bfaa6f$639d2cc0$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: <20000419105936.A25435@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: > > On Wed, Apr 19, 2000 at 01:38:07AM -0400, greslin@linuxpower.org wrote: > > On Tue, Apr 18, 2000 at 11:29:12PM -0500, sparky wrote: > > > > > > I have a further question: rereading Bryan's post from > yesterday about the > > > exchange of keys in the DeCSS process, it appears that CSS > goes into action > > > before any of the program gets played. Perhaps I am misunderstanding > > > something. What happens if CSS isn't decrypted? Does the DVD > playing program > > > run and you see nothing but static or a blank screen, or does > it not run and > > > give you a message "protected files will not play" or > something? Isn't it > > > the latter according to the dvd faq? And, does this not mean > that, even > > > though the program files themselves are not scrambled, CSS > prevents the > > > program as a whole from running? I hope this is correct. CSS > preventing the > > > whole program from running ties CSS to the program quite firmly. > > > > If it's true that PC DVD players simply execute DVD program > chains, then it > > would be logical to assume that program chains scrambled by CSS > would not > > execute until they were unscrambled. > > Except that program chains (IFO files) are never scrambled. Nor do you > have to go through the drive authentication sequence on a DVD-ROM drive to > access them. So CSS never prevents access to program chains. > > Eric Verily, thou hast bummed me the heck out. splarky > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 22:34:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17210 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:34:11 -0400 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 WAA17207 for ; Wed, 19 Apr 2000 22:34:09 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA22015 for ; Wed, 19 Apr 2000 21:34:07 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:33:26 -0500 Message-ID: <000301bfaa70$ce8d77a0$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: <20000419163952.4953.qmail@web512.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 Brian wrote: > > --- sparky wrote: > > > I don't think that would fly with the court, because all of a sudden > > copyrighted works could be reverse engineered, rendering > copyright holder's > > rights pointless (you will never find a digitally rendered > copyrighted work > > without there being some instruction set which will play/display it). > > Actually, this is already the law - all copyrighted works CAN be reverse > engineered. They just can't be COPIED - there is a difference. Reverse > engineering means analysis intended to uncover the underlying > IDEA. Ideas are > not copyrightable. I'm sorry, that's so bizarre. How do you RE a (digital) *work*? My natural assumption is that you would be REing the format it is in. Is this the case? Do you have sources? > > For example, a math text can be 'reverse engineered' - you puzzle > through what > it is saying, understand the ideas, and then write your own > original expression > of the same ideas. In fact, when there is only one natural way to > express the > ideas, the 'merger doctrine' will exempt this from copyright infringement > claims. > > > > > __________________________________________________ > Do You Yahoo!? > Send online invitations with Yahoo! Invites. > http://invites.yahoo.com > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 22:34:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17224 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:34:13 -0400 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 WAA17220 for ; Wed, 19 Apr 2000 22:34:12 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA22018 for ; Wed, 19 Apr 2000 21:34:09 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:33:28 -0500 Message-ID: <000401bfaa70$cfcad9a0$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: <20000419125444.A28680@arh1176> 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 Steve wroteth: > > > 1201(f)(1) only applies to the actual performance of RE > (identification and > analysis), not the final product. DeCSS is the product of the reverse > engineering done by MoRE, which is largely irrelevant to this arguement. > The second clause is the important part for this. DeCSS is the "means to > circumvent a technological measure" which allows the program > content of the > DVD (the .ifo files) to interoperate meaningfully with a mpeg player. As > a part of their interoperation, they exchange data: the .vob files. DeCSS > allows this exchange to be meaningful by translating the .vob files into a > format that the mpeg player can understand. This circumvention > is necessary > because an open source mpeg player cannot understand the scrambled .vob > file and no official program exists to descramble the vob files. > > > The legalese in paragraph 2 is a little thick for me, so please > explain to > > me if I'm misreading it somehow... > > I think you just applied the wrong part of it. But I could be > misinterpreting > it as well, as legal analysis is certainly not something I have that much > knowledge of. > > Steve, who has got to get his .sig back online again The law taketh away, and the law giveth back. (Hide it so it don't get taken away again!) sparky > From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 22:39:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17408 for dvd-discuss-outgoing; Wed, 19 Apr 2000 22:39:46 -0400 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 WAA17405 for ; Wed, 19 Apr 2000 22:39:44 -0400 Received: from bugbug (max01-37.suba.com [206.69.121.229]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id VAA22189 for ; Wed, 19 Apr 2000 21:39:41 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Wed, 19 Apr 2000 21:39:01 -0500 Message-ID: <000501bfaa71$960e2900$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: <5A8391CA2D9ED311AFAA080009D982B10B1AD2@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 wrote: > > > -----Original Message----- > > From: Robert S. Thau [mailto:rst@ai.mit.edu] > > Sent: Wednesday, April 19, 2000 11:21 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > > > > Careful --- this way lies the "HTML is a program" argument that the > > MPAA is trying to advance to get an injunction against linking to > > mirrors... > > > > rst > > > > This way also lies the "one man's data is another man's program" > and verse vica. All programs are data ... and all data can be > considered to be programs given that they contain "instructions" > which produce results -when interpreted in the correct environment-. > > It could be a way of proving that the current legal definition > of "program" is invalid to the point of absurdity and getting > the court to throw it out in favor of some new definition... I don't think so, Skipper. I like her. Let's keep her! Anyway, finding a better girlfriend may be more trouble than it's worth. sparky > > > -- > -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 Apr 19 23:06:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18022 for dvd-discuss-outgoing; Wed, 19 Apr 2000 23:06:19 -0400 Received: from dial147.roadrunner.com (dial147.cybermesa.com [209.12.75.147]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA18019 for ; Wed, 19 Apr 2000 23:06:14 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id VAA06474 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 21:10:22 -0600 Date: Wed, 19 Apr 2000 21:10:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000419211020.A6282@localhost> References: <20000419163952.4953.qmail@web512.mail.yahoo.com> <000301bfaa70$ce8d77a0$e57945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000301bfaa70$ce8d77a0$e57945ce@bugbug.WinNATDomain>; from sparky@suba.com on Wed, Apr 19, 2000 at 09:33:26PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 09:33:26PM -0500, sparky wrote: > Brian wrote: > > > > --- sparky wrote: > > > > > I don't think that would fly with the court, because all of a sudden > > > copyrighted works could be reverse engineered, rendering > > copyright holder's > > > rights pointless (you will never find a digitally rendered > > copyrighted work > > > without there being some instruction set which will play/display it). > > > > Actually, this is already the law - all copyrighted works CAN be reverse > > engineered. They just can't be COPIED - there is a difference. Reverse > > engineering means analysis intended to uncover the underlying > > IDEA. Ideas are > > not copyrightable. > > I'm sorry, that's so bizarre. How do you RE a (digital) *work*? My natural > assumption is that you would be REing the format it is in. Is this the > case? Do you have sources? What if the format is a programming language and the file is a program for generating an image of the document? A postscript file is both a program whose purpose is to generate a document. The postscript program which draws the document is itself covered by copyright. "Printing" the postscript document (i.e. executing the postscript, and dumping the image to a raster/plotting device) generates another (related) copyrighted document. ===========cut here============== %!PS-Adobe-1.0 /Times-Roman findfont 14 scalefont setfont 50 700 moveto (Hello, world!) show ===========cut here============== Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 19 23:17:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18612 for dvd-discuss-outgoing; Wed, 19 Apr 2000 23:17:24 -0400 Received: from dial113.roadrunner.com (dial113.cybermesa.com [209.12.75.113]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA18609 for ; Wed, 19 Apr 2000 23:17:22 -0400 Received: (from paul@localhost) by dial113.roadrunner.com (8.8.7/8.8.7) id VAA06669 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Apr 2000 21:21:26 -0600 Date: Wed, 19 Apr 2000 21:21:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Erm, interoperability (RE redux) Message-ID: <20000419212125.A6647@localhost> References: <20000419163952.4953.qmail@web512.mail.yahoo.com> <000301bfaa70$ce8d77a0$e57945ce@bugbug.WinNATDomain> <20000419211020.A6282@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000419211020.A6282@localhost>; from fenimore@roadrunner.com on Wed, Apr 19, 2000 at 09:10:20PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu %!PS-Adobe-1.0 /Times-Roman findfont 14 scalefont setfont 50 700 moveto (Hello, world!) show showpage From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 09:46:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30109 for dvd-discuss-outgoing; Thu, 20 Apr 2000 09:46:01 -0400 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 JAA30106 for ; Thu, 20 Apr 2000 09:45:58 -0400 Received: from bugbug (max01-49.suba.com [206.69.121.241]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id IAA03822 for ; Thu, 20 Apr 2000 08:45:52 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 08:45:11 -0500 Message-ID: <000101bfaace$a5ee3560$f17945ce@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: <20000419211020.A6282@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 Wed, Apr 19, 2000 at 09:33:26PM -0500, sparky wrote: > > Brian wrote: > > > > > > --- sparky wrote: > > > > > > > I don't think that would fly with the court, because all of a sudden > > > > copyrighted works could be reverse engineered, rendering > > > copyright holder's > > > > rights pointless (you will never find a digitally rendered > > > copyrighted work > > > > without there being some instruction set which will > play/display it). > > > > > > Actually, this is already the law - all copyrighted works CAN > be reverse > > > engineered. They just can't be COPIED - there is a difference. Reverse > > > engineering means analysis intended to uncover the underlying > > > IDEA. Ideas are > > > not copyrightable. > > > > I'm sorry, that's so bizarre. How do you RE a (digital) *work*? > My natural > > assumption is that you would be REing the format it is in. Is this the > > case? Do you have sources? > > What if the format is a programming language and the file is a program > for generating an image of the document? I can see this being correct about *formats* of documents, no problem. F'rinstance, you could RE a record or a book, which would not be like REing the info in the book - the work; but then again, copyright is supposed to govern works fixed in media. So are we REing the work? It probably doesn't matter, as long as we understand that in this case we are always talking about fixed works. If the file is a program, you're still not REing insofar as it's data, just insofar as it's a program. > > A postscript file is both a program whose purpose is to generate a > document. The postscript program which draws the document is itself > covered by copyright. "Printing" the postscript document (i.e. executing > the postscript, and dumping the image to a raster/plotting device) > generates another (related) copyrighted document. > > ===========cut here============== > %!PS-Adobe-1.0 > > /Times-Roman findfont 14 scalefont setfont > 50 700 moveto > (Hello, world!) show > ===========cut here============== > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 11:07:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00306 for dvd-discuss-outgoing; Thu, 20 Apr 2000 11:07:07 -0400 Received: from dial167.roadrunner.com (dial167.cybermesa.com [209.12.75.167]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA00303 for ; Thu, 20 Apr 2000 11:07:04 -0400 Received: (from paul@localhost) by dial167.roadrunner.com (8.8.7/8.8.7) id JAA00847 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Apr 2000 09:11:04 -0600 Date: Thu, 20 Apr 2000 09:11:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000420091102.A707@localhost> References: <20000419211020.A6282@localhost> <000101bfaace$a5ee3560$f17945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000101bfaace$a5ee3560$f17945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Apr 20, 2000 at 08:45:11AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 20, 2000 at 08:45:11AM -0500, sparky wrote: > Paul wrote: > > > > On Wed, Apr 19, 2000 at 09:33:26PM -0500, sparky wrote: > > > Brian wrote: > > > > > > > > --- sparky wrote: > > > > > > > > > I don't think that would fly with the court, because all of a sudden > > > > > copyrighted works could be reverse engineered, rendering > > > > copyright holder's > > > > > rights pointless (you will never find a digitally rendered > > > > copyrighted work > > > > > without there being some instruction set which will > > play/display it). > > > > > > > > Actually, this is already the law - all copyrighted works CAN > > be reverse > > > > engineered. They just can't be COPIED - there is a difference. Reverse > > > > engineering means analysis intended to uncover the underlying > > > > IDEA. Ideas are > > > > not copyrightable. > > > > > > I'm sorry, that's so bizarre. How do you RE a (digital) *work*? > > My natural > > > assumption is that you would be REing the format it is in. Is this the > > > case? Do you have sources? > > > > What if the format is a programming language and the file is a program > > for generating an image of the document? > > I can see this being correct about *formats* of documents, no problem. > F'rinstance, you could RE a record or a book, which would not be like REing > the info in the book - the work; but then again, copyright is supposed to > govern works fixed in media. So are we REing the work? It probably doesn't > matter, as long as we understand that in this case we are always talking > about fixed works. > > If the file is a program, you're still not REing insofar as it's data, just > insofar as it's a program. Both the postscript program and the output generated by the program contain ideas. People must have access to both sets of ideas if "promote progress" is operative. Put another way, both "programs" and "data" contain ideas. The only thing that sets "RE" apart is the tools used, not the objectives of the activity. If you analyze the output of the program, or the program itself you're doing the same thing. Reverse engineering is a term of art, and the techniques and tools used in "RE" are unfamiliar enough to, say, the average member of Congress, that they might confuse the tools with the activity. RE is simply an engineering term for figuring out how something works. If 1201(f) said, "you shall only circumvent access control to understand Calculus for the sole purpose of study at a University," there would be lots of funny looks, "what weirdos, they think Calculus should only be used to complete problem sets while studying at a University." But because people think RE is "different" or they don't what it is, they don't react the same way. "I mean, what do you think you're doing figuring out how that program works? If you're not going to write something that interoperates, what are you going to do with that information? Hunh? You're going to *gasp* write a _competing_ program?!" My point (and this is what I understood Bryan to say) is that RE involves some tools that might be different, but the core activity is analysis to uncover ideas, not the use of the tools proper. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 09:46:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA00458 for dvd-discuss-outgoing; Thu, 20 Apr 2000 09:46:26 -0400 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 JAA00455 for ; Thu, 20 Apr 2000 09:46:25 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGMPY>; Thu, 20 Apr 2000 08:47:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AD7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 08:46:59 -0700 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] > > My thought was that a work is coded digitally, either as a > single file or as > multiple files - as one piece or in several pieces, so to > speak - and this > would be data. As data, it does nothing. Up to this point, ok. >It would not be a set of > instructions or statements which can produce a result. But this > Something else could > use this data to produce a result Followed by that points out that data -is- instructions, to this "something else" that you mention. Unless there is some legal definition of "instruction" that clarifies matter, ALL instructions are merely data as long as it's just lying there on the disk. But once something is reading and interpreting that data, they become instructions. This applies whether we are talking about your encoded literary work or an application such as MSWORD.EXE. MSWORD.EXE is -- on disk -- merely data. "Something else" (Microsoft Windows) reads that data and produces results (displays the application GUI) with it. Basically the legal definitions are totally inadequate because they are vague to the point of allowing ANYTHING to be considered to be a "program" ... or not, depending upon how you want to argue 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 Thu Apr 20 09:58:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01245 for dvd-discuss-outgoing; Thu, 20 Apr 2000 09:58:03 -0400 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 JAA01242 for ; Thu, 20 Apr 2000 09:58:02 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGMQL>; Thu, 20 Apr 2000 08:58:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 08:58:40 -0700 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] > > > > > Given this broad of a definition, you could argue that > > this e-mail is a program, since it has a set of instructions > > (the headers) that produce a result (delivery of this message > > to the DVD discussion group). > > > > Even a simple ASCII text file contains a set of instructions > > (the ASCII letter codes) that produce a result (the display > > of the text) when interpreted by the right software. > > The def lends itself to parody. I think if I were to adjust the def > (striving to be fair) I would say that the ASCII is not a > program, even > though it is a set of instructions, because it can't produce > a result on its > own. NOTHING produces a result "on it's own". EVERYTHING must be interpreted by something else -- if only the CPU. But even then, the only thing -directly- interpreted by the CPU is the BIOS and the boot loader. From then on, everything is interpreted by the operating system. There are layers and layers of software required to get anything to display on modern machines, each one suffering some interpretation by the one below it. Why are you exempting the final layer? Why -isn't- the ASCII file "instructions" given to NOTEPAD.EXE? NOTEPAD is giving instructions to the operating system, the operating system is giving instructions to the BIOS ... (the shin bone is connected to the hip bone) ... but in the end, nothing that we ever deal with produces results "on it's own". > However, neither can an application produce a result on its > own. Obviously, > there must be something for it to read. Hm. Which could be considered to be "instructions" to that application, no? Is there a legal definition for this term "instruction" that has been used to define "program"? > Maybe this thought experiment would show why Peter is right, > and we must > consider data, at least the "instructions" coded into data, > as part of the > program. These "instructions" are like a data format. They > tell the program > how to act. Hm, that's a switch.. Now the data is telling the > program how to > act. but obviously it is what happens. So now I've convinced > myself Peter is > right. > > This is great. We're finding all the places where all the > definitions fall > apart. Too bad it doesn't lend itself to defense. Isn't poorly written law -- written so poorly as to be un-interpretable -- a defense? I thought you could get laws struck from the books if they were written so poorly that they could never be applied. >Wendy, can > you say whether > a strategy for the defense would include poking holes in > definitions like > this one to the point, would that be a valid part of an > attack on 1201's > validity? If nothing else, perhaps pushing these defintions could obstruct the opposition's case ... but I think the best use of -this- strategem would be to attempt to get the law thrown out as too ambiguous to be enforcable, if that is an option. -- -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 Apr 20 10:00:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA01327 for dvd-discuss-outgoing; Thu, 20 Apr 2000 10:00:00 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01324 for ; Thu, 20 Apr 2000 09:59:59 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028HH1>; Thu, 20 Apr 2000 12:01:41 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C55@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 12:01:40 -0400 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 There are two good ways to judge the difference between data and instructions.(*) For this discussion, program instructions are called program text. "Data" is the sum of all variable arguments to the text. Method 1: Is the data intrinsic to the algorithm expressed by the program text? Example: If a program contains the statement print "Hello world" then the literal string is fully intrinsic data. Method 2: Is the data separable from the program text? Can it act as an exchange of state between different instantiations of the program? Can it be separately manipulated? Example: A word processor writes out a file containing a document. The file can be given to anyone else with that program, and that person will have a copy of the document that can be edited or printed. (*) techie detail: to an operating system, a program is a data file that contains multiple parts, normally called sections. The section that contains the instructions for the program is commonly called the program text, or text section. On traditional Unix systems, there are two other sections called "data" and "bss" -- without going into a full blown description these contain intrinsic data. Of course, this is a thumbnail sketch. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 12:25:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02392 for dvd-discuss-outgoing; Thu, 20 Apr 2000 12:25:45 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02389 for ; Thu, 20 Apr 2000 12:25:44 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028H2M>; Thu, 20 Apr 2000 12:27:32 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C56@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 12:27:31 -0400 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 As a techie, I consider RE to involve study of the internals of a system. So, if I am running a program and I monitor the temporary files it uses during execution, that is RE. However, for purposes of a law, banning careful non-invasive study seems terribly unwise, and might not even be constitutional. So it might be the case that the only option is to define RE that involves active deconstruction and substitution of components. -----Original Message----- From: Paul Fenimore [mailto:fenimore@roadrunner.com] Sent: Thursday, April 20, 2000 11:11 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) If you analyze the output of the program, or the program itself you're doing the same thing. Reverse engineering is a term of art, and the techniques and tools used in "RE" are unfamiliar enough to, say, the average member of Congress, that they might confuse the tools with the activity. RE is simply an engineering term for figuring out how something works. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 12:29:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02546 for dvd-discuss-outgoing; Thu, 20 Apr 2000 12:29:38 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA02543 for ; Thu, 20 Apr 2000 12:29:37 -0400 Message-ID: <20000420161630.1554.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Thu, 20 Apr 2000 09:16:30 PDT Date: Thu, 20 Apr 2000 09:16:30 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] interoperability (RE redux) 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: > > Actually, this is already the law - all copyrighted works CAN be reverse > > engineered. They just can't be COPIED - there is a difference. Reverse > > engineering means analysis intended to uncover the underlying > > IDEA. Ideas are > > not copyrightable. > > I'm sorry, that's so bizarre. How do you RE a (digital) *work*? My natural > assumption is that you would be REing the format it is in. Is this the > case? Do you have sources? Sure, I have sources: below is a passage from Apple v. Franklin This quotations in turn quotes lots of other cases, including the US Supreme Court cases Mazer v. Stein and Baker v Selden, which is the origin of the mathematics example I used. __________________ Apple v. Franklin 714 F.2d 1240 (3rd Circuit 1983) http://eon.law.harvard.edu/openlaw/dvd/cases/Apple_v_Franklin.txt 2. Idea/Expression Dichotomy Franklin's other challenge to copyright of operating system programs relies on the line which is drawn between ideas and their expression. Baker v. Selden remains a benchmark in the law of copyright for the reading given it in Mazer v. Stein, supra, where the Court stated, "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea -- not the idea itself." 347 U.S. at 217 (footnote omitted). The expression/idea dichotomy is now expressly recognized in section 102(b) which precludes copyright for "any idea." This provision was not intended to enlarge or contract the scope of copyright protection but "to restate . . . that the basic dichotomy between expression and idea remains unchanged." H.R.Rep.No. 1476, supra, at 57, reprinted in 1976 U.S. Code Cong. & Ad. News at 5670. The legislative history indicates that section 102(b) was intended "to make clear that the expression adopted by the programmer is the copyrightable element [F.2d 1253] in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law." Id. Many of the courts which have sought to draw the line between an idea and expression have found difficulty in articulating where it falls. See, e.g., Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (L. Hand, J.); see discussion in 3 Nimmer on Copyright § 13.03[A]. We believe that in the context before us, a program for an operating system, the line must be a pragmatic one, which also keeps in consideration "the preservation of the balance between competition and protection reflected in the patent and copyright laws". Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). As we stated in Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 64 (3d Cir.), cert. denied, 439 U.S. 880, 58 L. Ed. 2d 193, 99 S. Ct. 217 (1978), "Unlike a patent, a copyright protects originality rather than novelty or invention." In that opinion, we quoted approvingly the following passage from Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir. 1926): Just as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist. We adopt the suggestion in the above language and thus focus on whether the idea is capable of various modes of expression. If other programs can be written or created which perform the same function as an Apple's operating system program, then that program is an expression of the idea and hence copyrightable. In essence, this inquiry is no different than that made to determine whether the expression and idea have merged, which has been stated to occur where there are no or few other ways of expressing a particular idea. See, e.g., Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir. 1967); Freedman v. Grolier Enterprises, Inc., 179 U.S.P.Q. 476, 478 (S.D.N.Y. 1973) ("copyright protection will not be given to a form of expression necessarily dictated by the underlying subject matter"); CONTU Report at 20. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 12:38:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02882 for dvd-discuss-outgoing; Thu, 20 Apr 2000 12:38:23 -0400 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 MAA02879 for ; Thu, 20 Apr 2000 12:38:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGMRS>; Thu, 20 Apr 2000 09:18:55 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1ADA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 09:18:46 -0700 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: Leland Ray [mailto:Ray@clearway.com] > Sent: Thursday, April 20, 2000 9:02 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > > There are two good ways to judge the difference between data and > instructions.(*) > > For this discussion, program instructions are called program > text. "Data" is > the sum of all variable arguments to the text. > > Method 1: Is the data intrinsic to the algorithm expressed by > the program > text? > > Example: If a program contains the statement print "Hello > world" then the > literal string is fully intrinsic data. > > Method 2: Is the data separable from the program text? Can it > act as an > exchange > of state between different instantiations of the program? Can it be > separately > manipulated? > > Example: A word processor writes out a file containing a document. The > file can be given to anyone else with that program, and that > person will > have > a copy of the document that can be edited or printed. The compiler writes out a file, MSWORD.EXE. That file can be given to anyone else with the program "Windows 98" ... > (*) techie detail: to an operating system, a program is a > data file that > contains multiple parts, normally called sections. The > section that contains > the instructions for the program is commonly called the > program text, or > text section. On traditional Unix systems, there are two > other sections > called "data" and "bss" -- without going into a full blown > description these > contain intrinsic data. Of course, this is a thumbnail sketch. > Your techie detail supports my thesis: the application program is merely data that must be interpreted by the operating system. UNIX will not properly interpret the file containing "MSWORD.EXE" just as Windows will not properly interpret the file containing "vi". So if applications programs themselves are data that must be interpreted by something else, how is any other data that must be interpreted by something else -- such as the document you mentioned -- to be separated out as being somehow different? -- -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 Apr 20 12:38:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02968 for dvd-discuss-outgoing; Thu, 20 Apr 2000 12:38:58 -0400 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 MAA02964 for ; Thu, 20 Apr 2000 12:38:56 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGMQ0>; Thu, 20 Apr 2000 09:11:05 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AD9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 09:11:01 -0700 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: Thursday, April 20, 2000 6:45 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > Paul wrote: > > > > On Wed, Apr 19, 2000 at 09:33:26PM -0500, sparky wrote: > > > Brian wrote: > > > > > > > > --- sparky wrote: > > > > > > > > > I don't think that would fly with the court, because > all of a sudden > > > > > copyrighted works could be reverse engineered, rendering > > > > copyright holder's > > > > > rights pointless (you will never find a digitally rendered > > > > copyrighted work > > > > > without there being some instruction set which will > > play/display it). > > > > > > > > Actually, this is already the law - all copyrighted works CAN > > be reverse > > > > engineered. They just can't be COPIED - there is a > difference. Reverse > > > > engineering means analysis intended to uncover the underlying > > > > IDEA. Ideas are > > > > not copyrightable. > > > > > > I'm sorry, that's so bizarre. How do you RE a (digital) *work*? > > My natural > > > assumption is that you would be REing the format it is > in. Is this the > > > case? Do you have sources? > > > > What if the format is a programming language and the file > is a program > > for generating an image of the document? > > I can see this being correct about *formats* of documents, no problem. > F'rinstance, you could RE a record or a book, which would not > be like REing > the info in the book - the work; but then again, copyright is > supposed to > govern works fixed in media. So are we REing the work? It > probably doesn't > matter, as long as we understand that in this case we are > always talking > about fixed works. > > If the file is a program, you're still not REing insofar as > it's data, just > insofar as it's a program. > The thing is that there is an intangible here: the encoding method for the data. This is neither "the program" nor "the data", but it is -how- "the program" can successfully interpret "the data". What is being RE'd is -the method- which must be used to create an independant program which can read the data in question. The data is not part of the program per se, but it -is- the only piece available to you that shows evidence of the encoding method being used. So you have to examine the -data- in order to RE the -method- so that you may produce your independant program. If there are access controls on the data then we may bypass them for this purpose. In this case the access control mechanism -is- the data encryption ... but that does not really affect the outcome of this argument. -- -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 Apr 20 13:16:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03749 for dvd-discuss-outgoing; Thu, 20 Apr 2000 13:16:32 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA03746 for ; Thu, 20 Apr 2000 13:16:31 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028HKW>; Thu, 20 Apr 2000 13:18:20 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C57@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 13:18:19 -0400 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 You are quite right. You have to construe the program/data distinction based upon what is alleged in a particular case. Data is meaningless without first deciding on what the interpreter is. For the present case, it is unclear as to whether the interpreter is the DVD player itself (incorporating the CSS decode) or if the interpreter is the OS/architecture. This decision forms a pivot for the rest of the argument. I do not think there is a single answer to the question, so it makes sense to frame the argument first accepting the choice of interpreter in the original complaint, then show how changing the choice of an interpreter affects the argument. My opinion is that you get out of this can of worms by arguing that the authority of the copyright owner comes from a process, not from a product. I posted a note with this thought a few days ago, and have been meaning to get back to it. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 15:41:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09152 for dvd-discuss-outgoing; Thu, 20 Apr 2000 15:41:42 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09110 for ; Thu, 20 Apr 2000 15:41:40 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12iMpZ-0005AK-00; Thu, 20 Apr 2000 21:41:41 +0200 Received: from localhost by sites.inka.de with local id 12iMpc-000174-00; Thu, 20 Apr 2000 21:41:44 +0200 Date: Thu, 20 Apr 2000 21:41:44 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000420214144.A4151@inka.de> References: <611C0CE12596D311B466009027D5E7591E4C56@c3100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C56@c3100.clearway.com>; from Ray@clearway.com on Thu, Apr 20, 2000 at 12:27:31PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > However, for purposes of a law, banning careful non-invasive study > seems terribly unwise, and might not even be constitutional. So it might > be the case that the only option is to define RE that involves > active deconstruction and substitution of components. Are you saying a law that prohibited you from taking apart, examining and substituting components in a machine you had paid for and owned would be acceptable? Sham -- "No dictator, no invader, can hold an imprisoned population by force of arms forever. There is no greater power in the universe than the need for freedom. Against that power, governments and tyrants and armies cannot stand." (Ambassdor G'Kar, Babylon 5) http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 15:52:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09699 for dvd-discuss-outgoing; Thu, 20 Apr 2000 15:52:27 -0400 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 PAA09696 for ; Thu, 20 Apr 2000 15:52:26 -0400 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 PAA16017 for ; Thu, 20 Apr 2000 15:52:27 -0400 (EDT) Message-Id: <4.2.2.20000420122207.00d2b570@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 20 Apr 2000 15:52:23 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: RE: [dvd-discuss] interoperability (RE redux) - vagueness In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.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 08:58 AM 4/20/00 -0700, hartman@onetouch.com wrote: > > From: sparky [mailto:sparky@suba.com] [...] > >Wendy, can > > you say whether > > a strategy for the defense would include poking holes in > > definitions like > > this one to the point, would that be a valid part of an > > attack on 1201's > > validity? > >If nothing else, perhaps pushing these defintions could >obstruct the opposition's case ... but I think the best >use of -this- strategem would be to attempt to get the law >thrown out as too ambiguous to be enforcable, if that is >an option. Pushing the fuzziness of 1201's definitions could open a good vagueness argument. First, it's a problem if the law is so unclear that it doesn't give potential violators notice that what they're doing is against the law. Second, vagueness in the speech context (if we can get DeCSS analyzed as speech) is particularly troublesome because an indefinite prohibition will likely have a "chilling effect" on protected speech. One useful feature of a vagueness argument is that it's made by showing that the definitions are impossible to pin down, rather than by claiming that yours is the definitive answer. As the other side tries to show that the words must mean whatever the MPAA wants them to mean, you pull them down the slippery slope into overbreadth and ridiculous prohibitions. (Don't let them play Humpty Dumpty with the words of the law just because they can manipulate the technologies that implement it.) Of course I don't know how one of these arguments would actually play out in court... --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 15:55:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09871 for dvd-discuss-outgoing; Thu, 20 Apr 2000 15:55:45 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09868 for ; Thu, 20 Apr 2000 15:55:44 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028HXD>; Thu, 20 Apr 2000 15:57:34 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C5B@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 15:57:32 -0400 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 Well, acceptable or not, the fact is that in certain cases, taking apart a machine you have purchased and modifying it is illegal. Here is an example. If you own a radio, take a look at the legalese in the instruction book that comes with it. You will see a very curious statement that says something like "unauthorized modification may void your authority to operate this equipment." -----Original Message----- From: Sham Gardner [mailto:mail@risctaker.inka.de] Sent: Thursday, April 20, 2000 3:42 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Are you saying a law that prohibited you from taking apart, examining and substituting components in a machine you had paid for and owned would be acceptable? Sham From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 16:07:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10247 for dvd-discuss-outgoing; Thu, 20 Apr 2000 16:07:43 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10244 for ; Thu, 20 Apr 2000 16:07:42 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12iNEe-0005NP-00; Thu, 20 Apr 2000 13:07:36 -0700 Date: Thu, 20 Apr 2000 13:07:36 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000420130736.P1696@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <611C0CE12596D311B466009027D5E7591E4C5B@c3100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C5B@c3100.clearway.com>; from Ray@clearway.com on Thu, Apr 20, 2000 at 03:57:32PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > Well, acceptable or not, the fact is that in certain cases, taking > apart a machine you have purchased and modifying it is illegal. > > Here is an example. If you own a radio, take a look at the > legalese in the instruction book that comes with it. You > will see a very curious statement that says something like > "unauthorized modification may void your authority to operate > this equipment." Your example is not a good one, because the penalty for modification is a _possibility_ of "void[ing] your authority to operate the equipment" (for radiofrequency communications affecting interstate commerce?). That doesn't mean that the modifications are illegal, or that you couldn't do other things with the equipment after you'd modified it. (There might be many uses for converted radio equipment which wouldn't involve making radio broadcasts.) And, if you comply with FCC regulations in modifying the equipment, then you still have authority to operate it anyway -- even if you didn't get permission from the manufacturer. Those warnings are there to prevent you from violating FCC regulations by accident, not to forbid you from modifying your own equipment. There are some other, better examples of devices which it's illegal to manufacture (never mind sell!), but most of the examples I know of actually come from recent paracopyright law. :-) -- 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 Apr 20 16:10:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10389 for dvd-discuss-outgoing; Thu, 20 Apr 2000 16:10:51 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10386 for ; Thu, 20 Apr 2000 16:10:49 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id QAA00613 for ; Thu, 20 Apr 2000 16:10:20 -0400 Date: Thu, 20 Apr 2000 16:10:20 -0400 (EDT) From: Joshua Stratton To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C5B@c3100.clearway.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 Now hang on. If it's yours - not leased, or borrowed, but _yours_ - and you bought it, where did these strings come from? You might not be able to reproduce it w/o violating someones patent, or maybe even copyright, or trademark, granted. And you can't sell claiming it's not modified, 'cos that'd be fraud. But I'm still completely in the dark as to how this has any power whatsoever. Do please note the use of a top-notch weasel word in there: ...modification MAY void... I suspect that in any real instance, unauth. modification will not have any legal ramifications unless you do something else as well (as noted above) and that the legaleese is just to dupe people into not even trying. I'd be suspicious of it - just because the radio company's lawyers say something doesn't necessarily mean that it's true. It could just as easily be intimidation. -josh stratton On Thu, 20 Apr 2000, Leland Ray wrote: > > Well, acceptable or not, the fact is that in certain cases, taking > apart a machine you have purchased and modifying it is illegal. > > Here is an example. If you own a radio, take a look at the > legalese in the instruction book that comes with it. You > will see a very curious statement that says something like > "unauthorized modification may void your authority to operate > this equipment." > > -----Original Message----- > From: Sham Gardner [mailto:mail@risctaker.inka.de] > Sent: Thursday, April 20, 2000 3:42 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] interoperability (RE redux) > > Are you saying a law that prohibited you from taking apart, examining and > substituting components in a machine you had paid for and owned would > be acceptable? > > Sham > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 17:21:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13320 for dvd-discuss-outgoing; Thu, 20 Apr 2000 17:21:09 -0400 Received: from dial174.roadrunner.com (dial174.cybermesa.com [209.12.75.174]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13317 for ; Thu, 20 Apr 2000 17:21:06 -0400 Received: (from paul@localhost) by dial174.roadrunner.com (8.8.7/8.8.7) id PAA00747 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Apr 2000 15:25:02 -0600 Date: Thu, 20 Apr 2000 15:25:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) - vagueness Message-ID: <20000420152501.A592@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> <4.2.2.20000420122207.00d2b570@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000420122207.00d2b570@law.harvard.edu>; from wendy@seltzer.com on Thu, Apr 20, 2000 at 03:52:23PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 20, 2000 at 03:52:23PM -0400, Wendy Seltzer wrote: [ ... ] > Pushing the fuzziness of 1201's definitions could open a good vagueness > argument. First, it's a problem if the law is so unclear that it doesn't > give potential violators notice that what they're doing is against the > law. Second, vagueness in the speech context (if we can get DeCSS analyzed > as speech) is particularly troublesome because an indefinite prohibition > will likely have a "chilling effect" on protected speech. > > One useful feature of a vagueness argument is that it's made by showing > that the definitions are impossible to pin down, rather than by claiming > that yours is the definitive answer. As the other side tries to show that > the words must mean whatever the MPAA wants them to mean, you pull them > down the slippery slope into overbreadth and ridiculous > prohibitions. (Don't let them play Humpty Dumpty with the words of the law > just because they can manipulate the technologies that implement it.) 1. I think we've already got some vagueness in the form of Mr. Gold's statments during the first hearing when he said that DVD contained only data. Now that it is second injunction time, they want instances of HTML mark-up to be a program. 2. 1201(f)(2) says "such means" (i.e. reverse engineering) may be used if they are *necessary* to achieve interoperability. Who is to say what constitutes "necessary"? Does that mean you don't want to pay the license fee or sign an NDA? Or is it a matter of the copyright holder refusing to disclose some interface? [ I don't remember who first mentioned this. ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 17:21:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13353 for dvd-discuss-outgoing; Thu, 20 Apr 2000 17:21:58 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13350 for ; Thu, 20 Apr 2000 17:21:55 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028H8S>; Thu, 20 Apr 2000 17:23:45 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C5C@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 17:23:44 -0400 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 Hmmm... A high power oscillator for certain frequencies is always illegal even if you never apply power to it, or at least so claimed my old Radio Amateur's Handbook. But it is a 1962 addition I think, so it could be out of date. It also is obviously not a legal text... What about removal of airbags or pollution control devices on automobiles? Is that illegal? Is there an additional constitutional issue here? All examples I can think of have specific and compelling government interest in serious safety concerns, or national security. -----Original Message----- From: Seth David Schoen [mailto:schoen@loyalty.org] Sent: Thursday, April 20, 2000 4:08 PM To: 'dvd-discuss@eon.law.harvard.edu' Subject: Re: [dvd-discuss] interoperability (RE redux) And, if you comply with FCC regulations in modifying the equipment, then you still have authority to operate it anyway -- even if you didn't get permission from the manufacturer. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 19:39:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17836 for dvd-discuss-outgoing; Thu, 20 Apr 2000 19:39:19 -0400 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 TAA17833 for ; Thu, 20 Apr 2000 19:39:17 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id RAA18571 for ; Thu, 20 Apr 2000 17:39:20 -0600 Date: Thu, 20 Apr 2000 17:39:19 -0600 (MDT) From: John Galt To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000420130736.P1696@zork.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, 20 Apr 2000, Seth David Schoen wrote: > Leland Ray writes: > > > Well, acceptable or not, the fact is that in certain cases, taking > > apart a machine you have purchased and modifying it is illegal. > > > > Here is an example. If you own a radio, take a look at the > > legalese in the instruction book that comes with it. You > > will see a very curious statement that says something like > > "unauthorized modification may void your authority to operate > > this equipment." > > Your example is not a good one, because the penalty for modification > is a _possibility_ of "void[ing] your authority to operate the > equipment" (for radiofrequency communications affecting interstate > commerce?). > > That doesn't mean that the modifications are illegal, or that you > couldn't do other things with the equipment after you'd modified > it. (There might be many uses for converted radio equipment > which wouldn't involve making radio broadcasts.) > > And, if you comply with FCC regulations in modifying the equipment, > then you still have authority to operate it anyway -- even if you > didn't get permission from the manufacturer. > > Those warnings are there to prevent you from violating FCC regulations > by accident, not to forbid you from modifying your own equipment. > > There are some other, better examples of devices which it's illegal > to manufacture (never mind sell!), but most of the examples I know > of actually come from recent paracopyright law. :-) Guns. It's illegal (under tax law, which is not necessarily criminal, but not necessarily civil either) to modify a gun to fire more than once per pull of the trigger, if fact, it's illegal to actually take apart the reciever without a license (basically it's a special case of FFL). The authority for this resides in the NFA and it's successors. There is one problem with the NFA--it has been supreme court tested exactly once, and the defendant didn't even show up, so judgement for the plaintiffs was affirmed by default (US v miller). Now forget I said this, since there is no good reason to start on a "gun control" topic. > -- > 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 > EMACS == Eight Megabytes And Constantly Swapping Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 20:16:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18836 for dvd-discuss-outgoing; Thu, 20 Apr 2000 20:16:43 -0400 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 UAA18833 for ; Thu, 20 Apr 2000 20:16:42 -0400 Received: from bugbug (max01-52.suba.com [206.69.121.244]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA28053 for ; Thu, 20 Apr 2000 19:16:40 -0500 (CDT) From: "sparky" To: Subject: better def of program? (was RE: [dvd-discuss] interoperability (RE redux)) Date: Thu, 20 Apr 2000 19:16:00 -0500 Message-ID: <000001bfab26$c60cd560$f47945ce@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: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@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 wrote: > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > > > > > > > > Given this broad of a definition, you could argue that > > > this e-mail is a program, since it has a set of instructions > > > (the headers) that produce a result (delivery of this message > > > to the DVD discussion group). > > > > > > Even a simple ASCII text file contains a set of instructions > > > (the ASCII letter codes) that produce a result (the display > > > of the text) when interpreted by the right software. > > > > The def lends itself to parody. I think if I were to adjust the def > > (striving to be fair) I would say that the ASCII is not a > > program, even > > though it is a set of instructions, because it can't produce > > a result on its > > own. > > NOTHING produces a result "on it's own". EVERYTHING must > be interpreted by something else -- if only the CPU. But > even then, the only thing -directly- interpreted by the > CPU is the BIOS and the boot loader. From then on, everything > is interpreted by the operating system. There are layers > and layers of software required to get anything to display > on modern machines, each one suffering some interpretation > by the one below it. Why are you exempting the final layer? > Why -isn't- the ASCII file "instructions" given to NOTEPAD.EXE? > NOTEPAD is giving instructions to the operating system, the > operating system is giving instructions to the BIOS ... (the > shin bone is connected to the hip bone) ... but in the end, > nothing that we ever deal with produces results "on it's own". Okay, okay, roger wilco already. Peace. :) So: a general conclusion of this string appears to be (and forgive if it exists in previous strings, and I've missed it, chowderhead) is that, under the legal def of program, relying on "instructions which produce a result", everything becomes a program, that is, "data" legally speaking, appears to cease to exist. This next doesn't exactly address a defense for 2600 (certainly not directly) but I feel like throwing it out. Does anyone have a definition of program which they think is more reasonable, which will avoid the pitfalls that the law (at least 1201, or even copyright law) has been prey to so far? It no longer seems that the "string/loom" analogy strictly applies to the conception of "program" as part of a "data/program" scenario. To be more specific, the def "instructions which produce a result" seems to imply that the law believes a "program" to be a counterpart to the "loom" in the loom/string scenario: that is, the loom operates "on its own", the string is inert and is handled completely by the loom, entirely passive, no aspect of it tells the loom how to behave. I think a more academic/philosophical discussion of how the law in general approaches defining things like "programs" and tech stuff in general, may be very beneficial to us; in fact it could be helpful in court, if it comes to arguing that 1201 is vague and having to tell the reasons why. Very useful in crossing the tech/law boundary, hopefully. Also, maybe some lawyers would feel more comfortable with this more academic/philosophical discussion in public, it having nothing to do with legal advice. My first thought is, does anyone see any relation between the problems we've articulated for the program def so far, and Nimmer's description of the thinking behind anti-access measures (like having a lock on a house)? A stab in the dark. sparky > > > > However, neither can an application produce a result on its > > own. Obviously, > > there must be something for it to read. Hm. > > Which could be considered to be "instructions" to that > application, no? Is there a legal definition for this > term "instruction" that has been used to define "program"? > > > Maybe this thought experiment would show why Peter is right, > > and we must > > consider data, at least the "instructions" coded into data, > > as part of the > > program. These "instructions" are like a data format. They > > tell the program > > how to act. Hm, that's a switch.. Now the data is telling the > > program how to > > act. but obviously it is what happens. So now I've convinced > > myself Peter is > > right. > > > > This is great. We're finding all the places where all the > > definitions fall > > apart. Too bad it doesn't lend itself to defense. > > Isn't poorly written law -- written so poorly as to > be un-interpretable -- a defense? I thought you could > get laws struck from the books if they were written > so poorly that they could never be applied. > > > >Wendy, can > > you say whether > > a strategy for the defense would include poking holes in > > definitions like > > this one to the point, would that be a valid part of an > > attack on 1201's > > validity? > > If nothing else, perhaps pushing these defintions could > obstruct the opposition's case ... but I think the best > use of -this- strategem would be to attempt to get the law > thrown out as too ambiguous to be enforcable, if that is > an option. > > > > -- > -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 Apr 20 20:27:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19229 for dvd-discuss-outgoing; Thu, 20 Apr 2000 20:27:05 -0400 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 UAA19194 for ; Thu, 20 Apr 2000 20:27:02 -0400 Received: from bugbug (max01-52.suba.com [206.69.121.244]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA28377 for ; Thu, 20 Apr 2000 19:26:58 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Thu, 20 Apr 2000 19:26:20 -0500 Message-ID: <000101bfab28$37702080$f47945ce@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: <5A8391CA2D9ED311AFAA080009D982B10B1ADA@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 wrote: > > > -----Original Message----- > > From: Leland Ray [mailto:Ray@clearway.com] > > Sent: Thursday, April 20, 2000 9:02 AM > > To: 'dvd-discuss@eon.law.harvard.edu' > > Subject: RE: [dvd-discuss] interoperability (RE redux) > > > > > (*) techie detail: to an operating system, a program is a > > data file that > > contains multiple parts, normally called sections. The > > section that contains > > the instructions for the program is commonly called the > > program text, or > > text section. On traditional Unix systems, there are two > > other sections > > called "data" and "bss" -- without going into a full blown > > description these > > contain intrinsic data. Of course, this is a thumbnail sketch. > > > > Your techie detail supports my thesis: the application program > is merely data that must be interpreted by the operating system. > UNIX will not properly interpret the file containing "MSWORD.EXE" > just as Windows will not properly interpret the file containing "vi". > > So if applications programs themselves are data that must be > interpreted by something else, how is any other data that must > be interpreted by something else -- such as the document you > mentioned -- to be separated out as being somehow different? Even though I'm finding the legal def more and more of a problem, I've still got one more shot in me: what would you say to a "programs read" approach? Programs are instruction sets that read other information, data (whatever that is), other instruction sets.. "Data" would be whatever information set is incapable of "reading" other data. Y'know, these terms "program" and "data" are starting to feel pretty soggy in this debate. We may have to think up new ones altogether to arrive at fair ways of articulating these tech things. sparky > > > > -- > -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 Apr 20 21:37:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21484 for dvd-discuss-outgoing; Thu, 20 Apr 2000 21:37:51 -0400 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 VAA21481 for ; Thu, 20 Apr 2000 21:37:50 -0400 Received: from bugbug (max01-40.suba.com [206.69.121.232]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id UAA29999 for ; Thu, 20 Apr 2000 20:37:50 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY Date: Thu, 20 Apr 2000 20:37:12 -0500 Message-ID: <000501bfab32$1dc30da0$f47945ce@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 This string has become HIDEOULY long, and so I'm posting this "status report" on what important points have been made here: -no more trying to see how DeCSS interoperates, or which things interoperate in too strict a sense. In a RE effort, interoperability is aimed at as a matter of course. --as long as we do not run afoul of 1201(f)(1), but may rely on (f)(2), DeCSS appears defensible as an RE "means", intended for RE. There may be difficulty in characterizing the open source movement's method of circulation; it -without having to worry about "interoperability" per se, important points of debate for an RE defense become: --nature of RE: -1201 seems to imply that "RE" is something distinct from normal software development practice. -in fact, developers do RE in the vast majority of software development projects, as it is a part of normal software development; -developers frequently do it due to lack of documentation; --nature of "program" (that to which RE is applied): -it seems that the legal def of "program" assumes a "program/data" dichotomy, yet turns everything into "programs", as programs are always data which something else (usually another program) must read in order to execute, and as we seem unable to strictly characterize "data" as containing no instructions which produce a result. -additionally, in an RE effort "data" even strictly distinguished from "programs" is of equal importance for the RE: without it, it is extremely difficult (impossible?) actually to do RE of a program, for there is nothing to produce the "result". -programs and data are likewise difficult to distinguish based on RE: both contain ideas, and we do RE in order to understand the ideas behind either in order to use those ideas. In RE of computer programs or of "data", the goal also is still interoperability between some two (or more) things, programs or hardware. Currently, it appears to me that the sticking points to a good RE defense is whether we are really beholden to 1201(f)(1) or (2); and the possibly thorny issue of RE leading to breaking of access control on "data". Anyone got additions to this? sparky From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 22:26:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22269 for dvd-discuss-outgoing; Thu, 20 Apr 2000 22:26:23 -0400 Received: from dial216.roadrunner.com (dial216.cybermesa.com [209.12.75.216]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA22266 for ; Thu, 20 Apr 2000 22:26:20 -0400 Received: (from paul@localhost) by dial216.roadrunner.com (8.8.7/8.8.7) id UAA01782 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Apr 2000 20:30:25 -0600 Date: Thu, 20 Apr 2000 20:30:24 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) SUMMARY Message-ID: <20000420203024.A1648@localhost> References: <000501bfab32$1dc30da0$f47945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000501bfab32$1dc30da0$f47945ce@bugbug.WinNATDomain>; from sparky@suba.com on Thu, Apr 20, 2000 at 08:37:12PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 20, 2000 at 08:37:12PM -0500, sparky wrote: [ ... ] > --nature of "program" (that to which RE is applied): > -it seems that the legal def of "program" assumes a > "program/data" > dichotomy, yet turns everything into "programs", as programs are always data > which something else (usually another program) must read in order to > execute, and as we seem unable to strictly characterize "data" as containing > no instructions which produce a result. Data being a subset (proper or not) of programs is also compatible with s.101's definition of "program." [ ... ] > -programs and data are likewise difficult to distinguish > based on RE: both > contain ideas, and we do RE in order to understand the ideas behind either > in order to use those ideas. In RE of computer programs or of "data", the > goal also is still interoperability between some two (or more) things, > programs or hardware. The statute makes the distinction of RE for interoperability vs. other uses of RE (like competition). In my view this is a problem with the law --- who says DeCSS can't be part of a complete production and viewing system whose purpose is not just interoperation, but also competition with DVD-CCA on their home turf? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 20 23:52:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24329 for dvd-discuss-outgoing; Thu, 20 Apr 2000 23:52:27 -0400 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 XAA24326 for ; Thu, 20 Apr 2000 23:52:26 -0400 Received: from bugbug (max02-30.suba.com [206.69.121.94]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id WAA03717 for ; Thu, 20 Apr 2000 22:52:27 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY Date: Thu, 20 Apr 2000 22:51:47 -0500 Message-ID: <000001bfab44$eae400c0$5e7945ce@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: <20000420203024.A1648@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, Apr 20, 2000 at 08:37:12PM -0500, sparky wrote: > > [ ... ] > > -programs and data are likewise difficult to distinguish > > based on RE: both > > contain ideas, and we do RE in order to understand the ideas > behind either > > in order to use those ideas. In RE of computer programs or of > "data", the > > goal also is still interoperability between some two (or more) things, > > programs or hardware. > > The statute makes the distinction of RE for interoperability vs. other > uses of RE (like competition). In my view this is a problem with the > law --- who says DeCSS can't be part of a complete production and viewing > system whose purpose is not just interoperation, but also competition > with DVD-CCA on their home turf? > > > Paul Fenimore > I don't think the wording of 1201 prohibits "RE for competition", because I don't think it really mentions a motive behind the RE - that is, the interoperability is not defined so that it is restrictive qua motive. The "interoperability" 1201 talks about refers to a program the REers are making, and any other program. In other words, precisely what is interoperating is left almost completely unspecified. You don't have to be aiming at interoperability with the REed program. (1201(f)(1) only says that the circumvention of access control is to be on the REed program, nothing about the REed program being part of whatever is interoperating.) Therefore, because interoperation is so general, I don't think 1201 ascribes a definite motive or motivational condition on the RE. Clearly, DeCSS contributes to interoperability of new players with OSs other than those supported by DVD, such as Linux and OpenBSD, which would be your "competitive", I think. sparky-and-to-bed From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 03:11:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA27434 for dvd-discuss-outgoing; Fri, 21 Apr 2000 03:11:30 -0400 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 DAA27431 for ; Fri, 21 Apr 2000 03:11:29 -0400 From: kmself@ix.netcom.com Received: from navel (sji-ca6-111.ix.netcom.com [205.186.213.111]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with ESMTP id DAA23189 for ; Fri, 21 Apr 2000 03:11:31 -0400 (EDT) Received: from karsten by navel with local (Exim 3.12 #1 (Debian)) id 12iXb1-0003ay-00 for ; Fri, 21 Apr 2000 00:11:23 -0700 Date: Fri, 21 Apr 2000 00:11:23 -0700 To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Comments on opinion paper wanted Message-ID: <20000421001123.A13802@ix.netcom.com> Mail-Followup-To: karsten, "'dvd-discuss@eon.law.harvard.edu'" References: <611C0CE12596D311B466009027D5E7591E4BF7@host100.56jfk.com> Mime-Version: 1.0 Content-Type: multipart/signed; micalg=pgp-sha1; protocol="application/pgp-signature"; boundary="1yeeQ81UyVL57Vl7" Content-Disposition: inline User-Agent: Mutt/1.1.9i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4BF7@host100.56jfk.com>; from Ray@clearway.com on Thu, Mar 30, 2000 at 08:11:26PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --1yeeQ81UyVL57Vl7 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline Content-Transfer-Encoding: quoted-printable On Thu, Mar 30, 2000 at 08:11:26PM -0500, Leland Ray wrote: >=20 > Examples of rising and falling in the computer industry: >=20 > IBM, once #1 in the mainframe market (I wouldn't use the PC example; > although it may sound familiar to your audience) >=20 > DEC, once #1 in the minicomputer market >=20 > CDC, once one of the best known makers of disk drives >=20 > Motorola once the viable competition to Intel for mpus. >=20 > Video game manufacturers getting their market destroyed > by home game machines Interesting observations. The thread is paralleled by three works which come to mind. The first is Shapiro and Varian's "Information Rules" (http://www.inforules.com/), which lays out much of the underlying economic foundations for the information economy. Among the observations, IT is both very prone to monopolization, and very "tippy" -- advantage can be attained or lost fairly easily. The second are comments by Tim O'Reilly, published IIRC on his website, in Release 1.0 (published by Esther Dyson), and part of his general "what is free software" schtick. It's a pretty interesting view at why he bet on open standards. The third is "The U.S. software industry : an analysis and interpretative history", by W. Edward Steinmueller, which profiles the software industry from the late 1950s to the early 1990s. One of the lessons I took from it was that each generation of systems was replaced by one which offered users more flexibility and power at less cost, with flexibility being a key factor. This isn't Steinmueller's thesis, but it could well be. http://www-edocs.unimaas.nl/files/mer95009.pdf Not where this fits in to the current debate, but it's an interesting historic trend. -- Karsten M. Self http:/www.netcom.com/~kmse= lf What part of "Gestalt" don't you understand? http://gestalt-system.sourceforge.net/ GPG fingerprint: F932 8B25 5FDD 2528 D595 DC61 3847 889F 55F2 B9B0 --1yeeQ81UyVL57Vl7 Content-Type: application/pgp-signature Content-Disposition: inline -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD4DBQE4//8bOEeIn1XyubARArEWAJ4iqqZ0ELtnJJPJFkpGlt71KQNBdwCXXRhM oPmVngm61AR4QOx2pd8u2w== =QSRH -----END PGP SIGNATURE----- --1yeeQ81UyVL57Vl7-- From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 10:06:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03257 for dvd-discuss-outgoing; Fri, 21 Apr 2000 10:06:54 -0400 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 KAA03254 for ; Fri, 21 Apr 2000 10:06:47 -0400 Received: from travel-net.com (trj120.travel-net.com [207.176.160.120]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id KAA31942 for ; Fri, 21 Apr 2000 10:07:33 -0400 Message-ID: <3900606F.5473CADF@travel-net.com> Date: Fri, 21 Apr 2000 10:06:39 -0400 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: [dvd-discuss] Everyone seen this already? References: <611C0CE12596D311B466009027D5E7591E4C5C@c3100.clearway.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 http://www.zdnet.com/zdnn/stories/news/0,4586,2550857,00.html The last paragraph is what got me. -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 10:29:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04124 for dvd-discuss-outgoing; Fri, 21 Apr 2000 10:29:07 -0400 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 KAA04121 for ; Fri, 21 Apr 2000 10:29:05 -0400 Received: from cdpage.com (gdsl180.dnvr.uswest.net [209.180.254.180]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id HAA12120 for ; Fri, 21 Apr 2000 07:29:23 -0700 (PDT) Message-ID: <3900653D.9F3ED997@cdpage.com> Date: Fri, 21 Apr 2000 08:27:09 -0600 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] Interesting reading References: <611C0CE12596D311B466009027D5E7591E4C5C@c3100.clearway.com> <3900606F.5473CADF@travel-net.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 http://www.zdnet.com/zdnn/stories/comment/0,5859,2553329,00.html?chkpt=zdnn042100 -- 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 Fri Apr 21 10:31:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04245 for dvd-discuss-outgoing; Fri, 21 Apr 2000 10:31:23 -0400 Received: from dial131.roadrunner.com (dial131.cybermesa.com [209.12.75.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA04241 for ; Fri, 21 Apr 2000 10:31:20 -0400 Received: (from paul@localhost) by dial131.roadrunner.com (8.8.7/8.8.7) id IAA00763 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 08:35:12 -0600 Date: Fri, 21 Apr 2000 08:35:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Everyone seen this already? Message-ID: <20000421083511.A553@localhost> References: <611C0CE12596D311B466009027D5E7591E4C5C@c3100.clearway.com> <3900606F.5473CADF@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3900606F.5473CADF@travel-net.com>; from dstein@travel-net.com on Fri, Apr 21, 2000 at 10:06:39AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 21, 2000 at 10:06:39AM -0400, Dan Steinberg wrote: > http://www.zdnet.com/zdnn/stories/news/0,4586,2550857,00.html > > The last paragraph is what got me. Beautiful. And Sony did it twice in one sentence. Is it possible to verify that both "software" and "agreement" came out of the mouth of a Sony employee as there are no names given in this piece? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 11:32:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06151 for dvd-discuss-outgoing; Fri, 21 Apr 2000 11:32:20 -0400 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 LAA06148 for ; Fri, 21 Apr 2000 11:32:19 -0400 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 LAA12339 for ; Fri, 21 Apr 2000 11:32:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA24815; Fri, 21 Apr 2000 11:32:22 -0400 (EDT) Date: Fri, 21 Apr 2000 11:32:22 -0400 (EDT) Message-Id: <200004211532.LAA24815@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > NOTHING produces a result "on it's own". EVERYTHING must > be interpreted by something else -- if only the CPU. But > even then, the only thing -directly- interpreted by the > CPU is the BIOS and the boot loader. From then on, everything > is interpreted by the operating system. Ummm... not quite, though the details depend somewhat on the nature of the operating environment. In an ordinary PC, the BIOS and boot loader are run in so-called "real mode", in which the processor grants the programs unimpeded access to all hardware features. Once the operating system is loaded, it generally switches the processor into other modes, often choosing a more privileged mode for its own code, and less privileged modes for other programs. However, in all of these modes, the instructions are still being interpreted by the hardware directly; it's just following different sets of rules --- depending on the mode, for example, memory addresses may be treated differently, and certain instructions may be banned altogether. This is not the only possible arrangement, however. On a Transmeta Crusoe processor, *none* of the instructions are directly interpreted by the hardware, not even the BIOS. Instead, the processor starts out by loading a translator written in its own native instruction set, and executes other code by, roughly, running it through the translator and interpreting the translated code. (If you read the Transmeta white papers, you'll find out that even this is an oversimplification, but the main point here is that Crusoe does not --- and cannot --- execute *any* x86 code directly in hardware). > There are layers > and layers of software required to get anything to display > on modern machines, each one suffering some interpretation > by the one below it. Why are you exempting the final layer? > Why -isn't- the ASCII file "instructions" given to NOTEPAD.EXE? You're arguing, in effect, that it is not *possible* to say that one file is a program, and another is data, on a modern computer. Well, watch me: emacs is a program, and my INBOX is data which is being operated on by that program. There are cases which blur the distinction, Postscript being a pretty good example. In those cases, the only way of even attempting to draw the distinction is to talk about intent --- do people think about the file as an active entity --- as a process encoded as a set of instructions, or as a passive entitye --- a document which is operated upon by viewers, printers, and the like? This sort of definition is anathema to techies, since it makes no sense to talk about the intent of a machine, but lawyers seem to do it all the time. And in any case, I don't think the existence of borderline or debatable cases should be allowed to obscure the straightforward cases --- x86 binaries are clearly programs, flat-ASCII text is clearly data, and so forth. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 11:35:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06267 for dvd-discuss-outgoing; Fri, 21 Apr 2000 11:35:27 -0400 Received: from waltz.rahul.net (postfix@waltz.rahul.net [192.160.13.9]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06264 for ; Fri, 21 Apr 2000 11:35:26 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 4D07299E37; Fri, 21 Apr 2000 08:35:29 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 450A793B3B for ; Fri, 21 Apr 2000 08:35:29 -0700 (PDT) Date: Fri, 21 Apr 2000 08:35:29 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Everyone seen this already? In-Reply-To: <20000421083511.A553@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 All is not what it seems. Sony doesn't like grey-market imports/exports, and this is *very* convenient for Sony--now they have a legal weapon to use against people trying to import the systems to the USA before its official release here. I wonder how much back-door dealing there was between Sony and the Japanese government to get them to do this. And I have little doubt that the trade ministry's approval will conveniently come at exactly before Sony officially releases them here, so it's timed to hurt the private importers and not damage Sony at all. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 11:55:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07123 for dvd-discuss-outgoing; Fri, 21 Apr 2000 11:55:51 -0400 Received: from dial152.roadrunner.com (dial152.cybermesa.com [209.12.75.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA07119 for ; Fri, 21 Apr 2000 11:55:48 -0400 Received: (from paul@localhost) by dial152.roadrunner.com (8.8.7/8.8.7) id JAA01425 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 09:59:52 -0600 Date: Fri, 21 Apr 2000 09:59:51 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Everyone seen this already? Message-ID: <20000421095950.A1265@localhost> References: <20000421083511.A553@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from arromdee@rahul.net on Fri, Apr 21, 2000 at 08:35:29AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The interesting bit that I, and I think Dan Steinberg, were talking about is: The export restrictions are just the latest in a string of problems that have plagued Sony's most profitable product. Sony Computer Entertainment said this month that users could illegally manipulate the machine to copy DVD movies to videotape. Last month it said it had found the game player could be used to watch digital video disk ^^^^^^^^^^^^^^^^^^ software sold overseas in breach of a worldwide agreement among DVD ^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ player makers. ^^^^^^^^^^^^^ 1. "[W]orldwide agreement among DVD player makers" may be an illegal restraint of trade, one of the issues in this forum for: a. A counter-suit b. A possible attack on the validity of s.1201. 2. Calling the contents of a DVD "software" seems to be a direct contradiction of Mr. Gold's statement in NY court, and pertinent to the reverse engineering issue. Your point about the "national security" measures being a cover for restraint of trade is very interesting. Paul Fenimore On Fri, Apr 21, 2000 at 08:35:29AM -0700, Ken Arromdee wrote: > All is not what it seems. Sony doesn't like grey-market imports/exports, and > this is *very* convenient for Sony--now they have a legal weapon to use > against > people trying to import the systems to the USA before its official > release here. > > I wonder how much back-door dealing there was between Sony and the Japanese > government to get them to do this. And I have little doubt that the trade > ministry's approval will conveniently come at exactly before Sony officially > releases them here, so it's timed to hurt the private importers and not > damage Sony at all. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 12:23:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07710 for dvd-discuss-outgoing; Fri, 21 Apr 2000 12:23:48 -0400 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 MAA07707 for ; Fri, 21 Apr 2000 12:23:47 -0400 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 MAA31909; Fri, 21 Apr 2000 12:23:25 -0400 Message-Id: <200004211623.MAA31909@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: better def of program? (was RE: [dvd-discuss] interoperability (RE redux)) In-reply-to: Your message of "Thu, 20 Apr 2000 19:16:00 CDT." <000001bfab26$c60cd560$f47945ce@bugbug.WinNATDomain> Date: Fri, 21 Apr 2000 12:22:54 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It will perhaps help in this discussion to be aware of the fact that the definition of a ``computer program'' was added to the Copyright Act at the suggestion of (and was drafted by) the CONTU commission, none of whose members had ever had anything to do with computers. The CONTU commission concluded (around 1983) that the 1976 Copyright Act's protection extended to computer programs because computer programs fall within the definition of ``literary works'' and literary works are protected by copyright. ``Literary works'' are defined in Section 101 of the Copyright Act as: ''Literary works'' are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.'' Now it is pretty clear that if you regard a computer program as a string of binary digits, then it is expressed in numerical symbols, and is thus within the definition of ``literary works'' and if follows that computer programs are copyrightable as literary works (if they meet the other criteria needed to be eligible for copyright protection. And so the CONTU commission was correct. Note that under this view, computer programs consist of nothing but data expressed in numerical symbols, and in this respect are indistinguishable from a digital version of War and Peace or from the digital representation of a random number. Having concluded that computer programs are copyrightable as literary works, the CONTU commission thought that there should be a couple of special provisions in the Copyright Act relating only to computer programs. And these provisions were, with some slight modifications adopted by Congress. The most important of these provisions is: Sec. 117. Limitations on exclusive rights: Computer programs (a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. But for those provisions to be relatively clear it was necessary to come up with a definition of computer programs, and for that purpose the CONTU commission came up with the following definition, which was apparently derived from earlier definitions given by computer scientists when commenting on the proposed revisions to the Copyright Act that were enacted in 1976. How this definition fits with the use of the term ``computer program'' in Section 1201 of the Copyright Act is something that I suspect the draftsmen of the latter section never considered. -- 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 Fri Apr 21 12:35:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07998 for dvd-discuss-outgoing; Fri, 21 Apr 2000 12:35:22 -0400 Received: from dial203.roadrunner.com (dial203.cybermesa.com [209.12.75.203]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA07995 for ; Fri, 21 Apr 2000 12:35:19 -0400 Received: (from paul@localhost) by dial203.roadrunner.com (8.8.7/8.8.7) id KAA01780 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 10:39:24 -0600 Date: Fri, 21 Apr 2000 10:39:23 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000421103923.A1748@localhost> References: <20000419173025.15024.qmail@web512.mail.yahoo.com> <200004191805.OAA26809@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200004191805.OAA26809@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Wed, Apr 19, 2000 at 02:04:46PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 19, 2000 at 02:04:46PM -0400, Peter D. Junger wrote: > Bryan Taylor writes: > > : I stumbled across something I'd read before in Apple v. Franklin > : 714 F.2d 1240, > : which interprets (favorably) the copyrightability of object code. > : This leads me > : back to a question I asked earlier - doesn't copyrightability imply First > : Amendment protection. After all, copyright depends on 'original expression'. > : > : Was this point raised in Junger or Bernstein? > > I don't believe so, except perhaps peripherially in Bernstein. > > : If you say that source code > : and/or object code aren't expressive, wouldn't that invalidate every > : software copyright out there? > > The trouble is that the meaning of ``expressive'' may differ in copyright > law and in the law of the First Amendment. > > But I must admit that I've always liked your argument. I think there are > some who did not want me to win, because that would seem to legitimize > copyrights on software. So is the objection something like, "a recipe in the context of a cookbook, isn't copyrightable, so why should a computer recipe be copyrightable"? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 12:57:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA09078 for dvd-discuss-outgoing; Fri, 21 Apr 2000 12:57:38 -0400 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 MAA09075 for ; Fri, 21 Apr 2000 12:57:37 -0400 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 MAA32073; Fri, 21 Apr 2000 12:57:15 -0400 Message-Id: <200004211657.MAA32073@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Fri, 21 Apr 2000 11:32:22 EDT." <200004211532.LAA24815@soggy-fibers.ai.mit.edu> Date: Fri, 21 Apr 2000 12:56:45 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" writes: : And in any case, I don't think the existence of borderline or : debatable cases should be allowed to obscure the straightforward cases : --- x86 binaries are clearly programs, flat-ASCII text is clearly : data, and so forth. Are x86 binaries programs when they are stored on an http sever running on a SPARC box? Was flat-ASCII purely data back in the days when my CP/M box had to send the ASCII to a separate terminal, which had to interpret each ASCII byte (or, at least the low seven bits thereof) as a different instruction to draw a different glyph on the screen? -- 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 Fri Apr 21 13:04:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09347 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:04:42 -0400 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 NAA09344 for ; Fri, 21 Apr 2000 13:04:41 -0400 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 NAA32119; Fri, 21 Apr 2000 13:04:35 -0400 Message-Id: <200004211704.NAA32119@samsara.law.cwru.edu> To: "Peter D. Junger" cc: dvd-discuss@eon.law.harvard.edu, junger@samsara.law.cwru.edu Subject: Re: better def of program? (was RE: [dvd-discuss] interoperability (RE redux)) In-reply-to: Your message of "Fri, 21 Apr 2000 12:22:54 EDT." <200004211623.MAA31909@samsara.law.cwru.edu> Date: Fri, 21 Apr 2000 13:04:35 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu When I wrote the fairly long message that ends: : But for those provisions to be relatively clear it was necessary to come up : with a definition of computer programs, and for that purpose the CONTU : commission came up with the following definition, which was apparently : derived from earlier definitions given by computer scientists when : commenting on the proposed revisions to the Copyright Act that were : enacted in 1976. : : How this definition fits with the use of the term ``computer program'' in : Section 1201 of the Copyright Act is something that I suspect the : draftsmen of the latter section never considered. I left out the definition, which of course is: 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. Sorry about that. -- 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 Fri Apr 21 13:28:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10173 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:28:49 -0400 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 NAA10170 for ; Fri, 21 Apr 2000 13:28:49 -0400 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 NAA29635; Fri, 21 Apr 2000 13:28:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA25270; Fri, 21 Apr 2000 13:28:33 -0400 (EDT) Date: Fri, 21 Apr 2000 13:28:33 -0400 (EDT) Message-Id: <200004211728.NAA25270@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <200004211657.MAA32073@samsara.law.cwru.edu> References: <200004211532.LAA24815@soggy-fibers.ai.mit.edu> <200004211657.MAA32073@samsara.law.cwru.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger writes: > "Robert S. Thau" writes: > > : And in any case, I don't think the existence of borderline or > : debatable cases should be allowed to obscure the straightforward cases > : --- x86 binaries are clearly programs, flat-ASCII text is clearly > : data, and so forth. > > Are x86 binaries programs when they are stored on an http sever running > on a SPARC box? Is SimCity a program when it is sitting in a box on some retailer's shelf? (Note that there are software emulators, like WABI, which will run x86 binaries on a SPARC, some of which work by translation, and there are also languages such as Perl, in which very substantial programs have been written, which are never translated all the way to machine code. The only real differences between WABI and Crusoe are that the Crusoe emulation is more thorough, and that Sun lets you run native code on the SPARC --- the emulator is the only native program that *exists* for Crusoe, aside, one supposes, from chip-tests and the like). > Was flat-ASCII purely data back in the days when my CP/M box had to > send the ASCII to a separate terminal, which had to interpret each > ASCII byte (or, at least the low seven bits thereof) as a different > instruction to draw a different glyph on the screen? I remember those days, and I don't know anyone who seriously viewed teletypes and the like as programmable devices. In fact, one manufacturer of "glass tty" devices took to marketing their machines as "dumb terminals" precisely to make it clear to the customer that their machines were not programmable (this was in contrast with "smart terminals", which actually did have a wider range of behavior, most of which turned out not to be terribly useful, but it sure did cost more...). NB I'm not denying that these definitions are slippery and that there are debatable borderline cases... but the same goes for "burglary tools" and the like. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 13:29:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10216 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:29:48 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA10213 for ; Fri, 21 Apr 2000 13:29:46 -0400 Message-ID: <20000421172920.8482.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 21 Apr 2000 10:29:20 PDT Date: Fri, 21 Apr 2000 10:29:20 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Interesting reading 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 Good article. I think the article makes the situation clear. The internet has provided a clearly superior way to distribute entertainment content. The "services" that content distributors provide (most notably music and movie industires) have become non-value added waste in the process. In order to protect their substantial economic interests and their "right" to profit by offering services that are now obsolete, these industries are attempting to use government to modify the power equation inherent in the free market. The fundamental economics are that people will not support waste. Essentially, the market will slowly force out the middle-man and create a direct author-to-consumer distribution system. Unfortunately, modern American governement lawmakers are more impressed by profitable industries than VALUABLE industries. This does not change the fact that the market forces will be overwelming. If bad laws are passed to prop up the "entertainment distribution" industry that is no longer needed it will only delay the inevitable and create a few martyrs. Ultimately, freedom, which underlies the free market, will win out. --- Dana Parker wrote: > http://www.zdnet.com/zdnn/stories/comment/0,5859,2553329,00.html?chkpt=zdnn042100 __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 13:36:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10865 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:36:24 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA10862 for ; Fri, 21 Apr 2000 13:36:22 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12ihLv-0007KB-00; Fri, 21 Apr 2000 10:36:27 -0700 Date: Fri, 21 Apr 2000 10:36:27 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000421103627.V1696@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> <200004211532.LAA24815@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004211532.LAA24815@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Apr 21, 2000 at 11:32:22AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > And in any case, I don't think the existence of borderline or > debatable cases should be allowed to obscure the straightforward cases > --- x86 binaries are clearly programs, flat-ASCII text is clearly > data, and so forth. I wrote a program just about a week or so ago which is flat ASCII text. http://www.loyalty.org/~schoen/catalan.py Interpreted languages are the bane of attempts to make these kinds of distinctions. :-) (Yes, there is a binary representation of that program, but I've never seen it. It exists transparently within the Python interpreter in order to improve the efficiency of the execution of the program.) John von Neumann and Alan Turing explained that there is no technical difference between programs and data; it all depends on what machine interacts with them, and other what circumstances. (Sometimes some information is both program and data; self-modifying code used to be more common when memory was more expensive.) catalan.py is data when I'm running vim, and it's a program when I'm running python. The only distinction that really exists is how a particular human being knows how to use some information, or intends to use it. There are some uses of information in machines which are more obvious than others. Despite that, the program/data distinction on a general-purpose computer is an illusion. -- 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 Apr 21 13:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10932 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:38:22 -0400 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 NAA10929 for ; Fri, 21 Apr 2000 13:38:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGN0H>; Fri, 21 Apr 2000 10:39:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AE3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY Date: Fri, 21 Apr 2000 10:39:07 -0700 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 In general a good summary, but I'm not too sure what you mean by one thing... > -----Original Message----- > From: sparky [mailto:sparky@suba.com] > Sent: Thursday, April 20, 2000 6:37 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY > > > This string has become HIDEOULY long, and so I'm posting this "status > report" on what important points have been made here: > > > -no more trying to see how DeCSS interoperates, or which > things interoperate > in too strict a sense. In a RE effort, interoperability is > aimed at as a > matter of course. I am not sure what you mean above by "no more trying to see how DeCSS interoperates". If we don't establish that the goal of the operation is the creation of an program which can "interoperate" with DVDs, then we lose the (f)(2) leg. Or is it that we are characterizing DeCSS as an intermediate work ... not the final goal but merely a necessary step taken towards that goal ... that is: DeCSS is not the end unto itself -- it is not in and of itself a DVD player for Linux -- but it was developed as a necessary RE step in the effort towards the creation of a DVD reader for Linux. Therefore it (DeCSS) does not need to interoperate with anything in order to be covered by (f)(2)? Is that the approach you are taking here? > --as long as we do not run afoul of 1201(f)(1), but may > rely on (f)(2), > DeCSS appears defensible as an RE "means", intended for RE. > There may be > difficulty in characterizing the open source movement's method of > circulation; it > > -without having to worry about "interoperability" per se, > important points > of debate for an RE defense become: > > --nature of RE: > -1201 seems to imply that "RE" is something > distinct from normal software > development practice. > -in fact, developers do RE in the vast majority > of software development > projects, as it is a part of normal software development; > -developers frequently do it due to lack of > documentation; > > --nature of "program" (that to which RE is applied): > -it seems that the legal def of "program" > assumes a "program/data" > dichotomy, yet turns everything into "programs", as programs > are always data > which something else (usually another program) must read in order to > execute, and as we seem unable to strictly characterize > "data" as containing > no instructions which produce a result. > -additionally, in an RE effort "data" even > strictly distinguished from > "programs" is of equal importance for the RE: without it, it > is extremely > difficult (impossible?) actually to do RE of a program, for > there is nothing > to produce the "result". > -programs and data are likewise difficult to > distinguish based on RE: both > contain ideas, and we do RE in order to understand the ideas > behind either > in order to use those ideas. In RE of computer programs or of > "data", the > goal also is still interoperability between some two (or > more) things, > programs or hardware. > > Currently, it appears to me that the sticking points to a > good RE defense is > whether we are really beholden to 1201(f)(1) or (2); and the > possibly thorny > issue of RE leading to breaking of access control on "data". > > Anyone got additions to this? > > sparky > > -- -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 Apr 21 13:48:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11520 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:48:36 -0400 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 NAA11517 for ; Fri, 21 Apr 2000 13:48:34 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGN0W>; Fri, 21 Apr 2000 10:49:22 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AE4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Fri, 21 Apr 2000 10:49:20 -0700 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] ... > You're arguing, in effect, that it is not *possible* to say that > one file is a program, and another is data, on a modern computer. > Well, watch me: emacs is a program, and my INBOX is data which is > being operated on by that program. This could also be cast as: Your INBOX is data consisting of instructions to the interpreter called "EMACS" which cause your messages to be displayed. The legal definition of program contains no references to algorithm or process, relying solely upon the word "instructions". An instruction can be just about anything. The single byte value of 65 is one element of an "instruction set" called ASCII which causes the letter 'A' to be displayed. Admittedly, taking the "what is an instruction" argument to this level is absurd ... but that is the point of the argument. The truth is that you -can- make a case for the e-mail consisting of instructions which produce a result, specifically the headers are instructions (to the mail processing programs) which direct delivery of the message. -- -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 Apr 21 13:53:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11674 for dvd-discuss-outgoing; Fri, 21 Apr 2000 13:53:58 -0400 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 NAA11671 for ; Fri, 21 Apr 2000 13:53:57 -0400 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 NAA03672 for ; Fri, 21 Apr 2000 13:54:02 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA25497; Fri, 21 Apr 2000 13:54:01 -0400 (EDT) Date: Fri, 21 Apr 2000 13:54:01 -0400 (EDT) Message-Id: <200004211754.NAA25497@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000421103627.V1696@zork.net> References: <5A8391CA2D9ED311AFAA080009D982B10B1AD8@mail2.onetouch.com> <200004211532.LAA24815@soggy-fibers.ai.mit.edu> <20000421103627.V1696@zork.net> 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: > > > And in any case, I don't think the existence of borderline or > > debatable cases should be allowed to obscure the straightforward cases > > --- x86 binaries are clearly programs, flat-ASCII text is clearly > > data, and so forth. > > I wrote a program just about a week or so ago which is flat ASCII > text. > > http://www.loyalty.org/~schoen/catalan.py > > Interpreted languages are the bane of attempts to make these kinds > of distinctions. :-) Touche! > The only distinction that really exists is how a particular human > being knows how to use some information, or intends to use it. There > are some uses of information in machines which are more obvious than > others. Despite that, the program/data distinction on a > general-purpose computer is an illusion. However, the way that "a particular human being ... intends to use" a thing is one of the ways that things seem to get characterized in the law. Is a lock-pick set a legitimate tool of the locksmith's trade, or a proscripted burglary tool? As I understand it, and I'll admit that corrections may be in order here, that depends in some measure on how the person who has the thing intends to use it. Likewise, there are cases in the criminal law in which intent, per se, is an element of particular crimes... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 14:00:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA11861 for dvd-discuss-outgoing; Fri, 21 Apr 2000 14:00:46 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA11858 for ; Fri, 21 Apr 2000 14:00:45 -0400 Message-ID: <20000421180019.610.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 21 Apr 2000 11:00:19 PDT Date: Fri, 21 Apr 2000 11:00:19 -0700 (PDT) From: Bryan Taylor Subject: Re: better def of program? (was RE: [dvd-discuss] interoperability (RE redux)) 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 --- "Peter D. Junger" wrote: > ``Literary works'' are defined in Section 101 of the Copyright Act as: > > ''Literary works'' are works, other than audiovisual works, > expressed in words, numbers, or other verbal or numerical symbols > or indicia, regardless of the nature of the material objects, > such as books, periodicals, manuscripts, phonorecords, film, > tapes, disks, or cards, in which they are embodied.'' > > Now it is pretty clear that if you regard a computer program as a string > of binary digits, then it is expressed in numerical symbols, and is > thus within the definition of ``literary works'' and if follows that > computer programs are copyrightable as literary works (if they meet the > other criteria needed to be eligible for copyright protection. And so > the CONTU commission was correct. I think this it is pretty settled law that computer programs are considered "literary works". Here's a post I made before on this with cites to three Circuit Courts saying as much - (and there are surely others). http://eon.law.harvard.edu/archive/dvd-discuss/msg01141.html By the way, I meant 1203(b)(1) in there, where I say 1201(b)(1). I believe there is a strong arguement that even object code can be protected by the first amendment. The Altai test from the 2nd Circuit decision I cited to, even gives a constructive algorithm for how to identify the expressive elements of a program in object code format. The test is for copyright purposes, but it seems like it should satisfy first amendment purposes too. While copyright law legitimately creates intellectual property in copyrighted expression that cuts across First Amendment protection, I don't see any validity to the claim that this extends to the 'paracopyright' realm, especially when the law says as much explicitly in 1203(b)(1) and 1201(c)(4). > Sec. 117. Limitations on exclusive rights: Computer programs > > (a) Making of Additional Copy or Adaptation by Owner of Copy. - > Notwithstanding the provisions of section 106, it is not an > infringement for the owner of a copy of a computer program to make or > authorize the making of another copy or adaptation of that computer > program provided: > (1) that such a new copy or adaptation is created as an > essential step in the utilization of the computer program in > conjunction with a machine and that it is used in no other > manner, or > (2) that such new copy or adaptation is for archival purposes > only and that all archival copies are destroyed in the event that > continued possession of the computer program should cease to be > rightful. 17 US 117(a)(1) sounds to me like it authorizes installation on the computer as a matter of law. In the CA case, a contract was supposedly created whereby the user could so install the program in exchange for agreeing not to reverse engineer the product, to abandon certain warantee claims, and to settle all disputes under CA law, and so on. I have to ask - what exactly does the user receive as consideration for these sweeping abandonments. They seem to get only permission to do something they don't need permission for - ie they get nothing. This should invalidate the contract, I think - no consideration. If nothing else, it should be enought to invalidate it as a contract of adhesion. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 14:12:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12215 for dvd-discuss-outgoing; Fri, 21 Apr 2000 14:12:19 -0400 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 OAA12212 for ; Fri, 21 Apr 2000 14:12:18 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCG3A0>; Fri, 21 Apr 2000 11:13:07 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AE5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Cc: junger@samsara.law.cwru.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Fri, 21 Apr 2000 11:13:06 -0700 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] ... > > Was flat-ASCII purely data back in the days when my CP/M box had to > > send the ASCII to a separate terminal, which had to interpret each > > ASCII byte (or, at least the low seven bits thereof) as a different > > instruction to draw a different glyph on the screen? > > I remember those days, and I don't know anyone who seriously viewed > teletypes and the like as programmable devices. Nor do I ... but that is beside the point. You are applying some relatively reasonable definition of the phrase "computer program" which you have developed based upon your life experience. No doubt your idea of what is and is not a "computer program" would fairly closely match mine. HOWEVER: what we are debating is the application of the >legal definition< of the phrase "computer program": 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. This definition seems to be perfectly applicable to many things that we would not normally consider to be programs, producing precisely the absurdities that you are complaining about. Yes, it is absurd to think of an e-mail message as a program ... but according to the legal definition above, it fits. This arguement is towards establishing the vagueness of the law in this matter. I have been concentrating on "instruction" and "result" but the use of "directly OR INDIRECTLY" is also worth pushing (see my exclusions below). Now regarding the -actual- definition of "program", unfortunately at the moment -- for me at least -- it's kind of an "I know it when I see it" sort of thing built up as a mental gestalt over the years I have been working with computers. To try to put it into words that would satisfy the court as a replacement for the current definition is a difficult excercise. Please, try to put your definition of "program" into words such that it will cover: the intel binary temporarily resident on a sparc machine simcity on the store shelves and not: e-mail ASCII files driving directions displayed by MapQuest (those certainly -are- instructions, aren't they? displayed by a computer? will -indirectly- (through you) produce a result (you will get where you are going)?) And where do UNIX shell scripts (or DOS batch files) come in? Unlike the program binaries which are interpreted by the CPU, these ASCII files must be interpreted by another program in order to work ... but they -do- produce results and the are far more deserving of the title "computer program" than e-mail ... or are they merely data and it is the interpreting program that produces the results using that data (the shell script file) as input? If I create a binary file in an instruction set that has been defined for a processor that has not yet seen production: is it a program? If it is not, does it somehow -become- a program when that CPU first rolls off the production line? When it is built into a prototype computer? When would my file become a program? If it is a program before that first CPU is produced, what if the production run is cancelled and that CPU is never produced? Is my file still a program? Does it become inert data only when the plans to produce the CPU are cancelled? It's kinda like nailing jelly to a tree, isn't 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 Apr 21 14:14:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12492 for dvd-discuss-outgoing; Fri, 21 Apr 2000 14:14:24 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA12488 for ; Fri, 21 Apr 2000 14:14:23 -0400 Message-ID: <20000421181354.14528.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 21 Apr 2000 11:13:54 PDT Date: Fri, 21 Apr 2000 11:13:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] interoperability (RE redux) 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: > So is the objection something like, "a recipe in the context of a cookbook, > isn't copyrightable, so why should a computer recipe be copyrightable"? Why do you say it isn't copyrightable? If you photocopied it and sold it, I bet you'd lose. (Maybe not - I don't know for sure). On the other hand - unless the recipe is patented, you'd be free to use the recipe and sell the food thus created. The ideas in the recipe aren't protected either - you could tell someone else how to do the recipe. I think you'd have to re-express the ideas though in an original way. The 'merger' principle would protect you unless you copied non-idea expression like the descriptive heading, artistic typesetting, etc... __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 14:45:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13324 for dvd-discuss-outgoing; Fri, 21 Apr 2000 14:45:29 -0400 Received: from dial169.roadrunner.com (dial169.cybermesa.com [209.12.75.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA13321 for ; Fri, 21 Apr 2000 14:45:26 -0400 Received: (from paul@localhost) by dial169.roadrunner.com (8.8.7/8.8.7) id MAA02751 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 12:49:29 -0600 Date: Fri, 21 Apr 2000 12:49:28 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000421124927.A2306@localhost> References: <20000421181354.14528.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000421181354.14528.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Apr 21, 2000 at 11:13:54AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 21, 2000 at 11:13:54AM -0700, Bryan Taylor wrote: > --- Paul Fenimore wrote: > > > So is the objection something like, "a recipe in the context of a cookbook, > > isn't copyrightable, so why should a computer recipe be copyrightable"? > > Why do you say it isn't copyrightable? If you photocopied it and sold it, > I bet > you'd lose. (Maybe not - I don't know for sure). > > On the other hand - unless the recipe is patented, you'd be free to use the > recipe and sell the food thus created. The ideas in the recipe aren't > protected > either - you could tell someone else how to do the recipe. I think you'd have > to re-express the ideas though in an original way. The 'merger' principle > would > protect you unless you copied non-idea expression like the descriptive > heading, > artistic typesetting, etc... My two-liner was way too ambiguous. I'm not advocating that position, I'm trying to understand why someone would object to copyrighting a computer program. There are aspects to a cookbook that are not copyrightable even though they are "writings" (they lack originality). My original statement is inaccurate, but it was supposed to be a straw man anyway. 1. Do people object to copyright for computer programs because they are "mere listings"? 2. Do people object that they are "functional"? 3. Something else I haven't thought of? _I_ can see problems with 1 and 2, but for exactly that reason I don't know what position other people might advocate. None of them really make sense to me. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 15:12:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15143 for dvd-discuss-outgoing; Fri, 21 Apr 2000 15:12:02 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA15140 for ; Fri, 21 Apr 2000 15:12:01 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12iiqT-0007Tq-00; Fri, 21 Apr 2000 12:12:05 -0700 Date: Fri, 21 Apr 2000 12:12:05 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000421121205.W1696@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000421181354.14528.qmail@web514.mail.yahoo.com> <20000421124927.A2306@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000421124927.A2306@localhost>; from fenimore@roadrunner.com on Fri, Apr 21, 2000 at 12:49:28PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > My two-liner was way too ambiguous. > > I'm not advocating that position, I'm trying to understand why someone > would object to copyrighting a computer program. There are aspects to > a cookbook that are not copyrightable even though they are "writings" > (they lack originality). My original statement is inaccurate, but it was > supposed to be a straw man anyway. > > 1. Do people object to copyright for computer programs because they are > "mere listings"? > 2. Do people object that they are "functional"? > 3. Something else I haven't thought of? > > _I_ can see problems with 1 and 2, but for exactly that reason I don't > know what position other people might advocate. None of them really make > sense to me. Some people object to copyright for computer programs because (1) they object to copyright in general, and see an opportunity to fight the expansion of copyright, or (2) they object to the consequences of copyrighted computer programs (e.g. the feasibility of "proprietary software", in the FSF's sense). Arguments for why, legally, computer programs should not be subject to existing copyright laws are pretty ad-hoc. In the light of experience like Professor Junger's lawsuit, and on reflection, most programmers probably agree that programming is original creative work. On the other hand, I don't know which particular objection you were originally referring to, so it might not have anything to do with these points. There _have_ been arguments (maybe merger doctrine-related?) that a computer program is more or less analogous to a really long mathematical proof. I think that argument is plausible, which raises the question of whether a long and complex mathematical proof is copyrightable. -- 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 Apr 21 15:30:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16689 for dvd-discuss-outgoing; Fri, 21 Apr 2000 15:30:30 -0400 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 PAA16686 for ; Fri, 21 Apr 2000 15:30:29 -0400 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 PAA03537 for ; Fri, 21 Apr 2000 15:30:33 -0400 (EDT) Message-Id: <4.2.2.20000421141410.00ce1620@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 21 Apr 2000 15:30:29 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] EFF Question 6 - Clickwrap Contracts In-Reply-To: <20000419175201.8739.qmail@web514.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 10:52 AM 4/19/00 -0700, bryan_w_taylor@yahoo.com wrote: >I've been quietly studying clickwrap contracts offline for a while now. I want >to share my work so far with the group. > >http://bioinformatics.ucsf.edu/bwtaylor/dvd/EFF_questions/Q6_clickwrap/ > >The outline consists of many position-neutral questions. The next work to be >done is to provide answers to the questions in the outline. Many, but >certainly >not all of these questions are addressed by the other references on the page. This is a great outline of the numerous issues raised by clickwrap licenses (don't miss reading it just because it's on a separate website). (Are you sure you haven't taken a few law school courses in issue spotting?) >After my short study here, I see a very disturbing parallel between the use of >mass contracts and the use of technological access control measures. Both have >the potential to destroy the 'delicate balance' of copyright protection. I think you're right that we will see more and more attempts to subsume other rights under contracts, and that these contracts will often be contracts of adhesion to which the end-user has no options between acceptance of the contract on boilerplate terms and refusal of the product. (cf. UCITA) Digitization makes it easier to encapsulate content and to put a clickwrap license at its gate, so I imagine we'll see private contract regulating much more activity. In turn, the "rise of contract" suggests that we need to pay more attention to the definitions and origins of the baseline rights and property interests on which contract operates. How much does the reading public have with which to bargain against the copyright holder? Is fair use an absolute right that cannot be contracted away? Is it at least a right for which we must be compensated when a work is locked under access controls? Copyright preemption may need to be strengthened if it's not to become completely irrelevant. --Wendy (needs a (re)view of the _other_ Cathedral) Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 15:42:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18141 for dvd-discuss-outgoing; Fri, 21 Apr 2000 15:42:54 -0400 Received: from dial120.roadrunner.com (dial120.cybermesa.com [209.12.75.120]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18138 for ; Fri, 21 Apr 2000 15:42:51 -0400 Received: (from paul@localhost) by dial120.roadrunner.com (8.8.7/8.8.7) id NAA03369 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 13:46:58 -0600 Date: Fri, 21 Apr 2000 13:46:57 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000421134657.A3242@localhost> References: <20000421181354.14528.qmail@web514.mail.yahoo.com> <20000421124927.A2306@localhost> <20000421121205.W1696@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000421121205.W1696@zork.net>; from schoen@loyalty.org on Fri, Apr 21, 2000 at 12:12:05PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 21, 2000 at 12:12:05PM -0700, Seth David Schoen wrote: > Some people object to copyright for computer programs because > > (1) they object to copyright in general, and see an opportunity to > fight the expansion of copyright, or > (2) they object to the consequences of copyrighted computer programs > (e.g. the feasibility of "proprietary software", in the FSF's > sense). > > Arguments for why, legally, computer programs should not be subject to > existing copyright laws are pretty ad-hoc. In the light of experience > like Professor Junger's lawsuit, and on reflection, most programmers > probably agree that programming is original creative work. > > On the other hand, I don't know which particular objection you were > originally referring to, so it might not have anything to do with > these points. My understanding of the original objections was that they applied to the copyrighting of computer programs per se. I was wondering what legal rationale there was to support an objection to copyright for computer programs in particular. > There _have_ been arguments (maybe merger doctrine-related?) that a > computer program is more or less analogous to a really long > mathematical proof. I think that argument is plausible, which raises > the question of whether a long and complex mathematical proof is > copyrightable. Ooh, that's exciting! So one of the analogies between computer programs and mathematical notation is that both are precise (formal?) modes of notation. This looks like fertile ground(*). Do you have a reference you can send? Paul Fenimore (*) I don't mean for the law-suit. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 16:16:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19384 for dvd-discuss-outgoing; Fri, 21 Apr 2000 16:16:07 -0400 Received: from mercury.Clearway (c3100.clearway.com [199.103.231.100] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA19381 for ; Fri, 21 Apr 2000 16:16:06 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028JKK>; Fri, 21 Apr 2000 16:18:03 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C65@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Interesting reading Date: Fri, 21 Apr 2000 16:17:55 -0400 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 Excuse off topicness, but... After we finish with the DMCA, can we go after the laws that prop up local television stations, and support the antiquated network/affiliate system? It drives me NUTS that I cannot even pay to get a station from another city delivered to me via satellite, internet, or carrier pigeon. -----Original Message----- From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] Sent: Friday, April 21, 2000 1:29 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Interesting reading If bad laws are passed to prop up the "entertainment distribution" industry that is no longer needed it will only delay the inevitable and create a few martyrs. Ultimately, freedom, which underlies the free market, will win out. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 16:26:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19987 for dvd-discuss-outgoing; Fri, 21 Apr 2000 16:26:19 -0400 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 QAA19984 for ; Fri, 21 Apr 2000 16:26:17 -0400 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 QAA32537; Fri, 21 Apr 2000 16:25:39 -0400 Message-Id: <200004212025.QAA32537@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Fri, 21 Apr 2000 10:39:23 MDT." <20000421103923.A1748@localhost> Date: Fri, 21 Apr 2000 16:25:09 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: : On Wed, Apr 19, 2000 at 02:04:46PM -0400, Peter D. Junger wrote: : > Bryan Taylor writes: : > : > : I stumbled across something I'd read before in Apple v. Franklin : > : 714 F.2d 1240, : > : which interprets (favorably) the copyrightability of object code. : > : This leads me : > : back to a question I asked earlier - doesn't copyrightability imply First : > : Amendment protection. After all, copyright depends on 'original expressio : n'. : > : : > : Was this point raised in Junger or Bernstein? : > : > I don't believe so, except perhaps peripherially in Bernstein. : > : > : If you say that source code : > : and/or object code aren't expressive, wouldn't that invalidate every : > : software copyright out there? : > : > The trouble is that the meaning of ``expressive'' may differ in copyright : > law and in the law of the First Amendment. : > : > But I must admit that I've always liked your argument. I think there are : > some who did not want me to win, because that would seem to legitimize : > copyrights on software. : : So is the objection something like, "a recipe in the context of a cookbook, : isn't copyrightable, so why should a computer recipe be copyrightable"? That's one that I rather like, but there are those who tried to argue that machine code is part of a machine and therefore cannot be protected by either copyright or the first amendment, or those who argued that machine code is binary code, which is just one's and zero's and thus not expressive and in turn protected neither by copyright not the first amendment. Neither of those arguments as I stated them make much sense to me. -- 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 Fri Apr 21 16:55:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21168 for dvd-discuss-outgoing; Fri, 21 Apr 2000 16:55:51 -0400 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 QAA21154 for ; Fri, 21 Apr 2000 16:55:45 -0400 Received: (from paul@localhost) by dial208.roadrunner.com (8.8.7/8.8.7) id OAA03808 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 14:59:55 -0600 Date: Fri, 21 Apr 2000 14:59:54 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF Question 6 - Clickwrap Contracts Message-ID: <20000421145954.A3697@localhost> References: <20000419175201.8739.qmail@web514.mail.yahoo.com> <4.2.2.20000421141410.00ce1620@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000421141410.00ce1620@law.harvard.edu>; from wendy@seltzer.com on Fri, Apr 21, 2000 at 03:30:29PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 21, 2000 at 03:30:29PM -0400, Wendy Seltzer wrote: [ ... ] > I think you're right that we will see more and more attempts to subsume > other rights under contracts, and that these contracts will often be > contracts of adhesion to which the end-user has no options between > acceptance of the contract on boilerplate terms and refusal of the > product. (cf. UCITA) Digitization makes it easier to encapsulate content > and to put a clickwrap license at its gate, so I imagine we'll see private > contract regulating much more activity. In turn, the "rise of contract" > suggests that we need to pay more attention to the definitions and origins > of the baseline rights and property interests on which contract > operates. How much does the reading public have with which to bargain > against the copyright holder? Is fair use an absolute right that cannot be > contracted away? Is it at least a right for which we must be compensated > when a work is locked under access controls? Copyright preemption may need > to be strengthened if it's not to become completely irrelevant. Part of the issue here is that one can write an adhesive contract that reaffirms the licensor's exclusive rights, and although the contract wouldn't have any effect because of copyright pre-emption, some courts, in particular the 9th Circuit in the ProCD decision simply don't distinguish between this kind of licensing of exclusive rights, and fair use, and non-copyright use. I think half the battle may be getting the courts to consistently acknowledge that even if some adhesive terms governing exclusive rights in a contract are ok, that says nothing about the acceptability of adhesive terms that govern non-copyright use or fair use. Adhesive terms in a contract that purport to regulate non-copyright use or fair use seem to fail any test of consideration. The right to reverse engineer (not counting 1201(f)) is not something the copyright owner can give. This is in contrast to the GPL which is an adhesive contract granting exclusive rights under s.106(1,2) on the conditions that, 1. The licensee perpetuate the license, 2. The licensee not modify the license, 3. The a patent holder make a general grant for use of applicable patents, 4. The licensee immunize upstream developers. The adhesiveness of the GPL is probably ok on two counts. First, the licensee doesn't pay a licensee fee, and second the exclusive right of the copyright owner really are theirs to give. This makes the GPL basically a gift-contract (i.e. "why yes, I promise to pay charitable organization X the amount $1000.") I'd make a comparison with other free software license here, but I'm afraid that might start a long flame war, so I'll just discuss the one. As far as the question of whether or not fair use is an absolute right, the quote from Nimmer about a more restrictive copyright notice manifestly having no effect seems to be on-target. Isn't there a delegation argument to be made about fair use, that Congress can't permit the delegation of what constitutes fair use to those who have an interest in destroying fair use? My proposed classification for terms in a software contract are: 1. exclusive rights, 2. fair use, 3. non-copyright use, 4. liability use (i.e. hazardous use, safetly/life critical) Properly, these are uses of the program, and might not be one-to-one with terms in a contract. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 17:47:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22751 for dvd-discuss-outgoing; Fri, 21 Apr 2000 17:47:37 -0400 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 RAA22748 for ; Fri, 21 Apr 2000 17:47:35 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCG3JJ>; Fri, 21 Apr 2000 14:48:25 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AE7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Who to go after next (was: RE: [dvd-discuss] Interesting reading) Date: Fri, 21 Apr 2000 14:48:23 -0700 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 Before them you'd want to go after the Cable companies. Despite there being more than one cable company, there is never more than one cable company servicing any one area. Can you say "effective monopoly"? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Leland Ray [mailto:Ray@clearway.com] > Sent: Friday, April 21, 2000 1:18 PM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] Interesting reading > > > Excuse off topicness, but... > > After we finish with the DMCA, can we go after the laws > that prop up local television stations, and support the > antiquated network/affiliate system? It drives me NUTS > that I cannot even pay to get a station from another city > delivered to me via satellite, internet, or carrier pigeon. > > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Friday, April 21, 2000 1:29 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Interesting reading > > If bad laws are passed to prop up > the "entertainment distribution" industry that is no longer > needed it will > only > delay the inevitable and create a few martyrs. Ultimately, > freedom, which > underlies the free market, will win out. > From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 17:49:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22873 for dvd-discuss-outgoing; Fri, 21 Apr 2000 17:49:22 -0400 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 RAA22870 for ; Fri, 21 Apr 2000 17:49:22 -0400 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 RAA04036; Fri, 21 Apr 2000 17:49:25 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA27222; Fri, 21 Apr 2000 17:49:23 -0400 (EDT) Date: Fri, 21 Apr 2000 17:49:23 -0400 (EDT) Message-Id: <200004212149.RAA27222@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AE5@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1AE5@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > HOWEVER: what we are debating is the application of the >legal > definition< of the phrase "computer program": > > 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. > > This definition seems to be perfectly applicable to many things that > we would not normally consider to be programs, producing precisely > the absurdities that you are complaining about. Yes, it is absurd to > think of an e-mail message as a program ... but according to the legal > definition above, it fits. Only if you adopt definitions of the word "instruction" which are (as has been noted) strained to the breaking point. I will cheerfully grant that there are cases which are, at best, ambiguous given the above definition, but there are also things that clearly *are* programs by that definition, and other things that clearly *aren't*. If you tell Judge Kaplan that you can't tell whether Project Gutenberg's flat-ASCII version of Moby Dick is a program or not by the law's definition, he's likely to ask you why --- the matter will be perfectly plain to him, and legitimately so. > Please, try to put your definition of "program" into words such > that it will cover: > > the intel binary temporarily resident on a sparc machine > simcity on the store shelves > > > and not: > > e-mail > ASCII files > driving directions displayed by MapQuest (those > certainly -are- instructions, aren't they? displayed > by a computer? will -indirectly- (through you) produce > a result (you will get where you are going)?) Well, here's one quick stab at a definition: A computer program is a set of information which may be used to cause a general-purpose electronic computer to initiate a desired transformation of some other input data, separate from the program itself, in order to make it perform a desired process or produce a desired result. [Exegesis: the program's behavior must depend on the input in some nontrivial way; according to this definition, a list of instructions which causes a computer to produce the same result regardless of the inputs that are offered is encoded data, and not a program.] If "general-purpose electronic computer" is understood to mean Turing-equivalent electronic devices, then I believe this definition covers all your cases. It also covers declarative systems such as spreadsheets, whose elements state relationships but aren't obviously "instructions" per se. It does require a "program" to respond to inputs, which excludes "programs" which simply print the digits of pi, and other "bad benchmarks", but I'm comfortable with that. I can't see any reason to draw legal distinctions between, say, a "program" which just makes fancy pictures and an mpeg of its output, since there is no functional difference between the two; they are, in effect, different encodings of the same video clip. The same goes for PostScript documents, neatly agreeing with ordinary usage there. Another approach might be to say that a given piece of information is a computer program if it has purely functional elements which may be discovered through reverse engineering, but that risks lumping in Word documents with formatting but no macros. But I'm not sure that further discussion of this issue is on-topic for this mailing list. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 19:36:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24988 for dvd-discuss-outgoing; Fri, 21 Apr 2000 19:36:16 -0400 Received: from relgyro.Stanford.EDU (relgyro.Stanford.EDU [171.64.110.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24985; Fri, 21 Apr 2000 19:36:13 -0400 From: anonymous@stanford.edu Received: from relgyro (relgyro.Stanford.EDU [171.64.110.50]) by relgyro.Stanford.EDU (8.9.3/8.9.3) with SMTP id QAA12558; Fri, 21 Apr 2000 16:34:11 -0700 (PDT) Date: Fri, 21 Apr 2000 16:34:11 -0700 (PDT) Message-Id: <200004212334.QAA12558@relgyro.Stanford.EDU> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu hello, for anyone reading this list who happens to live in the san francisco bay area, i have just learned that the MPAA's jack valenti will be speaking at stanford university this monday evening, april 24, at 7:30pm. the talk is at annenberg auditorium on the stanford campus. if you can find your way to palo alto, a searchable campus map is available at http://www.stanford.edu/home/map/search_map.html -- just do a search for "annenberg auditorium" at the bottom. cheers, h. ÿì. From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 19:49:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25353 for dvd-discuss-outgoing; Fri, 21 Apr 2000 19:49:45 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA25350 for ; Fri, 21 Apr 2000 19:49:44 -0400 Received: (qmail 26677 invoked by uid 502); 21 Apr 2000 23:51:45 -0000 Date: Fri, 21 Apr 2000 19:51:45 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] cssfaq.org Site Update Message-ID: <20000421195145.U17316@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've been informed that the machine hosting the www.cssfaq.org (the current home for the Openlaw DVD/DeCSS FAQ) is back online and operational. Thanks, Seth. :) -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 21:05:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27699 for dvd-discuss-outgoing; Fri, 21 Apr 2000 21:05:18 -0400 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 VAA27696 for ; Fri, 21 Apr 2000 21:05:16 -0400 Received: from travel-net.com (trj120.travel-net.com [207.176.160.120]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id VAA02152 for ; Fri, 21 Apr 2000 21:06:09 -0400 Message-ID: <3900FAC3.D61721D3@travel-net.com> Date: Fri, 21 Apr 2000 21:05:07 -0400 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] interoperability (RE redux) References: <200004211532.LAA24815@soggy-fibers.ai.mit.edu> <200004211657.MAA32073@samsara.law.cwru.edu> <200004211728.NAA25270@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: > > Peter D. Junger writes: > > "Robert S. Thau" writes: > > > > : And in any case, I don't think the existence of borderline or > > : debatable cases should be allowed to obscure the straightforward cases > > : --- x86 binaries are clearly programs, flat-ASCII text is clearly > > : data, and so forth. > > > > Are x86 binaries programs when they are stored on an http sever running > > on a SPARC box? > > Is SimCity a program when it is sitting in a box on some retailer's > shelf? Yes it is. And a Jetta is still an automobile while it's sitting in some retailer's showroom safely behind glass with the battery possibly disconnected. Its probably not an automobile when its a bunch of steel, rubber, glass, etc sitting on pallets (or however they store things in an auto plant if indeed they even store things). It becomes an auto when you can do all the cool things automobiles are supposed to do, not when you are actually doing them. If this issue is important I can probably dig up tons of cites and a more formal definition. If not, I can watch the rain fall this weekend. > > NB I'm not denying that these definitions are slippery and that there > are debatable borderline cases... but the same goes for "burglary > tools" and the like. > > rst -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 23:44:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30458 for dvd-discuss-outgoing; Fri, 21 Apr 2000 23:44:45 -0400 Received: from dial85.roadrunner.com (dial85.cybermesa.com [209.12.75.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30455 for ; Fri, 21 Apr 2000 23:44:42 -0400 Received: (from paul@localhost) by dial85.roadrunner.com (8.8.7/8.8.7) id VAA06475 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 21:48:59 -0600 Date: Fri, 21 Apr 2000 21:48:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Warner Home Video: "We expected the source code to be broken..." Message-ID: <20000421214857.A6371@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 Regarding CSS: [ ... ] JIM CARDWELL, WARNER HOME VIDEO: We expected the source code to be broken. We were surprised it wasn't broken earlier. We believe there is no economic incentive to hack this product. The cost of the blank is more expensive than the cost of the finished product, and the amount of time it takes to download is several hours. There's no real economic incentive for anyone to hack this product. [ ... ] The rest of the interview is about how DeCSS is a bad thing, piracy, yada yada yada. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 21 23:52:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30656 for dvd-discuss-outgoing; Fri, 21 Apr 2000 23:52:04 -0400 Received: from dial66.roadrunner.com (dial66.cybermesa.com [209.12.75.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30653 for ; Fri, 21 Apr 2000 23:52:02 -0400 Received: (from paul@localhost) by dial66.roadrunner.com (8.8.7/8.8.7) id VAA06640 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Apr 2000 21:56:17 -0600 Date: Fri, 21 Apr 2000 21:56:16 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Citation for illegal duplication of DVDs Message-ID: <20000421215616.C6371@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 discusses illegal duplication of disks in Hong Kong, and cites news articles that report illicit pressing plants being busted. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 01:28:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32464 for dvd-discuss-outgoing; Sat, 22 Apr 2000 01:28:03 -0400 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 BAA32461 for ; Sat, 22 Apr 2000 01:28:02 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA09994 for ; Sat, 22 Apr 2000 00:28:07 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY Date: Sat, 22 Apr 2000 00:27:27 -0500 Message-ID: <000501bfac1b$72931700$fd7945ce@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 In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AE3@mail2.onetouch.com> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard wrote: > > In general a good summary, but I'm not too sure what > you mean by one thing... > > > -----Original Message----- > > From: sparky [mailto:sparky@suba.com] > > Sent: Thursday, April 20, 2000 6:37 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] interoperability (RE redux) SUMMARY > > > > > > This string has become HIDEOULY long, and so I'm posting this "status > > report" on what important points have been made here: > > > > > > -no more trying to see how DeCSS interoperates, or which > > things interoperate > > in too strict a sense. In a RE effort, interoperability is > > aimed at as a > > matter of course. > > I am not sure what you mean above by "no more trying to see > how DeCSS interoperates". If we don't establish that the goal > of the operation is the creation of an program which can "interoperate" > with DVDs, then we lose the (f)(2) leg. > > Or is it that we are characterizing DeCSS as an intermediate > work ... not the final goal but merely a necessary step taken > towards that goal ... that is: DeCSS is not the end unto itself -- > it is not in and of itself a DVD player for Linux -- but it was > developed as a necessary RE step in the effort towards the creation > of a DVD reader for Linux. Therefore it (DeCSS) does not need to > interoperate with anything in order to be covered by (f)(2)? Is > that the approach you are taking here? It wasn't too clear. What I'm getting at is this: Before, in the argument over DeCSS falling under the scope of 1201(f), there was a lot of debate over what DeCSS "interoperated" with; or alternately, with what the DVD "program" interoperated with. An RE based defense seemed unpromising because we assumed that the "interoperability" had to be one of these two things, it had to involve either DeCSS or the DVD "program". Reading 1201(f) closely, this turns out to be an ungrounded assumption. First off, DeCSS is a tool ("means", 1201(f)(3)) to do RE - so there is no need to argue interoperation there. Next, the interoperating programs in 1201(f) only have to be some "original" program (I am not referring to the text as I type this, fyi) and some other program. Pretty damn general, and no need to have any interoperation with any program on a DVD whatsoever! Finally, this more general scenario makes a *whole* lot more sense, because RE construed the first way is far too narrow. Obviously, doing RE on a program doesn't mean that you are doing it to create interoperability with *that* program (you may be trying to create a competing program, as Paul says); however, just as obviously, the RE aims at *some* "interoperability" as a matter of course, that is the whole reason behind why developers do RE. So, it appears that we do not need really to worry about where the interoperability is. By which I mean, the legal def is so broad, and RE and interoperability so closely related, that to satisfy this "requirement" we only need say "LiViD player" and any OS it supports it. As a potentially important sidenote, 1201(f) doesn't say a damn thing about whether the other non-original program exists. If Linux hadn't been invented yet, or rather wasn't operational yet - if there was no way to really test whether the interoperation actually worked - DeCSS would still have a fighting chance as RE. sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 01:28:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32475 for dvd-discuss-outgoing; Sat, 22 Apr 2000 01:28:06 -0400 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 BAA32472 for ; Sat, 22 Apr 2000 01:28:05 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA09997 for ; Sat, 22 Apr 2000 00:28:10 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Everyone seen this already? Date: Sat, 22 Apr 2000 00:27:30 -0500 Message-ID: <000601bfac1b$74817980$fd7945ce@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 In-Reply-To: <20000421095950.A1265@localhost> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > > The interesting bit that I, and I think Dan Steinberg, were talking > about is: > > The export restrictions are just the latest in a string of problems > that have plagued Sony's most profitable product. Sony Computer > Entertainment said this month that users could illegally manipulate > the machine to copy DVD movies to videotape. Last month it said it had > found the game player could be used to watch digital video disk > ^^^^^^^^^^^^^^^^^^ > software sold overseas in breach of a worldwide agreement among DVD > ^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > player makers. > ^^^^^^^^^^^^^ > > 1. "[W]orldwide agreement among DVD player makers" may be an illegal > restraint of trade, one of the issues in this forum for: > a. A counter-suit > b. A possible attack on the validity of s.1201. > > 2. Calling the contents of a DVD "software" seems to be a direct > contradiction of Mr. Gold's statement in NY court, and pertinent to > the reverse engineering issue. Has someone saved the page on disk? It's important. We don't want to lose it if it's taken down.. sparky ps BY THE WAY everyone, I'm a few days away from setting up a web page which will be an EXHAUSTIVE list of all links cited on this forum. IF ANYONE WANTS A PARTICULAR LINK SAVED FOR OTHERS TO REFER TO AT ANY POINT IN THE FUTURE, POST IT HERE, AND IT WILL END UP ON THE LIST. ANYTHING IF FAIR GAME: NEWS ARTICLES, CASE CITES, ORGANIZATION HOME PAGES, and so on. All will be organized accordingly. If you like, also include a *brief* summary of what the target is/what importance it has, and I will enter that summary into a database I'm cooking up. (I will be creating the page with a script which draws the info from the database.) > > Your point about the "national security" measures being a cover for > restraint of trade is very interesting. > > > Paul Fenimore > > On Fri, Apr 21, 2000 at 08:35:29AM -0700, Ken Arromdee wrote: > > All is not what it seems. Sony doesn't like grey-market > imports/exports, and > > this is *very* convenient for Sony--now they have a legal weapon to use > > against > > people trying to import the systems to the USA before its official > > release here. > > > > I wonder how much back-door dealing there was between Sony and > the Japanese > > government to get them to do this. And I have little doubt > that the trade > > ministry's approval will conveniently come at exactly before > Sony officially > > releases them here, so it's timed to hurt the private importers and not > > damage Sony at all. > From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 01:28:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32486 for dvd-discuss-outgoing; Sat, 22 Apr 2000 01:28:09 -0400 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 BAA32483 for ; Sat, 22 Apr 2000 01:28:08 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA10000 for ; Sat, 22 Apr 2000 00:28:13 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sat, 22 Apr 2000 00:27:33 -0500 Message-ID: <000701bfac1b$763d8160$fd7945ce@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 In-Reply-To: <200004211532.LAA24815@soggy-fibers.ai.mit.edu> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert Thau wrote: > > > There are layers > > and layers of software required to get anything to display > > on modern machines, each one suffering some interpretation > > by the one below it. Why are you exempting the final layer? > > Why -isn't- the ASCII file "instructions" given to NOTEPAD.EXE? > > You're arguing, in effect, that it is not *possible* to say that > one file is a program, and another is data, on a modern computer. > Well, watch me: emacs is a program, and my INBOX is data which is > being operated on by that program. Hold on. We need to make sure here that no one is taking these arguments to the wrong level. Richard isn't saying anything about the *possibility* of calling something a program or data. His question is directly addressing the legal def of program, which calls programs instruction sets which produce results. Why isn't the ASCII file an instruction set? If the only criterion is that it must produce a result, then by itself, yes, it is not a program, legally speaking; but likewise, neither is the program a program, for it cannot produce a result without data. Each requires the other. (We could say that starting Word without opening a document is a result; however, it is an entirely useless result, and probably not the sort of result the law means. However, this too is left vague.) Furthermore, there are at least instructions of format in the data, which tell the program how to interpret the data. This is not to say that there *is no* difference between data and program; the point is that it is extremely difficult to differentiate between the two based on the legal def. *By that def*, everything is a program, nothing really seems to be data. Just calling something a program or data is fine in everyday life. We know what we mean. The law's language needs the additional dimension of being able to resolve disputes. The current def of program seems questionable in this regard. sparky > > There are cases which blur the distinction, Postscript being a pretty > good example. In those cases, the only way of even attempting to draw > the distinction is to talk about intent --- do people think about the > file as an active entity --- as a process encoded as a set of > instructions, or as a passive entitye --- a document which is operated > upon by viewers, printers, and the like? This sort of definition is > anathema to techies, since it makes no sense to talk about the intent > of a machine, but lawyers seem to do it all the time. > > And in any case, I don't think the existence of borderline or > debatable cases should be allowed to obscure the straightforward cases > --- x86 binaries are clearly programs, flat-ASCII text is clearly > data, and so forth. > > rst > > From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 01:28:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32503 for dvd-discuss-outgoing; Sat, 22 Apr 2000 01:28:12 -0400 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 BAA32494 for ; Sat, 22 Apr 2000 01:28:11 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA10003 for ; Sat, 22 Apr 2000 00:28:15 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sat, 22 Apr 2000 00:27:36 -0500 Message-ID: <000801bfac1b$77d7f780$fd7945ce@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 In-Reply-To: <20000421124927.A2306@localhost> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul wrote: > > On Fri, Apr 21, 2000 at 11:13:54AM -0700, Bryan Taylor wrote: > > --- Paul Fenimore wrote: > > > > > So is the objection something like, "a recipe in the context > of a cookbook, > > > isn't copyrightable, so why should a computer recipe be > copyrightable"? > > > > Why do you say it isn't copyrightable? If you photocopied it > and sold it, > > I bet > > you'd lose. (Maybe not - I don't know for sure). > > > > On the other hand - unless the recipe is patented, you'd be > free to use the > > recipe and sell the food thus created. The ideas in the recipe aren't > > protected > > either - you could tell someone else how to do the recipe. I > think you'd have > > to re-express the ideas though in an original way. The 'merger' > principle > > would > > protect you unless you copied non-idea expression like the descriptive > > heading, > > artistic typesetting, etc... > > My two-liner was way too ambiguous. > > I'm not advocating that position, I'm trying to understand why someone > would object to copyrighting a computer program. There are aspects to > a cookbook that are not copyrightable even though they are "writings" > (they lack originality). My original statement is inaccurate, but it was > supposed to be a straw man anyway. > > 1. Do people object to copyright for computer programs because they are > "mere listings"? > 2. Do people object that they are "functional"? > 3. Something else I haven't thought of? > > _I_ can see problems with 1 and 2, but for exactly that reason I don't > know what position other people might advocate. None of them really make > sense to me. > > > Paul Fenimore > I'll throw this out, since it seems a safe way to say something radical.. :) The way I've been thinking of it lately is that code is much like math equations. Bryan's already mentioned those.. Just by hunch, it seems to me that source code is a form of notation, like mathematics equations. I thought in response to this, Well, these computer code languages probably have a greater range of expression than math, but then I thought, what does that mean? That there are more ways to say a given thing in code than there are to say a thing with math, on average? I bet there are lots of ways to say the same thing with math. So currently I don't know where I see a difference between the two. sparky From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 02:30:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01547 for dvd-discuss-outgoing; Sat, 22 Apr 2000 02:30:21 -0400 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 CAA01544 for ; Sat, 22 Apr 2000 02:30:20 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id BAA11686 for ; Sat, 22 Apr 2000 01:29:55 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sat, 22 Apr 2000 01:29:15 -0500 Message-ID: <000a01bfac24$14a94160$fd7945ce@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 In-Reply-To: <200004212149.RAA27222@soggy-fibers.ai.mit.edu> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert wrote: > > Richard Hartman writes: > > HOWEVER: what we are debating is the application of the >legal > > definition< of the phrase "computer program": > > > > 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. > > > > This definition seems to be perfectly applicable to many things that > > we would not normally consider to be programs, producing precisely > > the absurdities that you are complaining about. Yes, it is absurd to > > think of an e-mail message as a program ... but according to the legal > > definition above, it fits. > > Only if you adopt definitions of the word "instruction" which are (as > has been noted) strained to the breaking point. I will cheerfully > grant that there are cases which are, at best, ambiguous given the > above definition, but there are also things that clearly *are* > programs by that definition, and other things that clearly *aren't*. > > If you tell Judge Kaplan that you can't tell whether Project > Gutenberg's flat-ASCII version of Moby Dick is a program or not by the > law's definition, he's likely to ask you why --- the matter will be > perfectly plain to him, and legitimately so. But again, it depends on the context in which we must interpret what "program" and "data" are. The words of those on the Senate Committe were that 1201(f) should only apply to *programs*, not to works - by which I presume, not to the data on which programs work. And, the language of 1201(f)(1) says that tech measures may be circumvented on a *program* - which implies, along with the 1201 def of program, that the tech measures on non-instructions that don't produce a result, the data, may *not* be circumvented. (This is perhaps a false assumption.) That is, 1201(f), if we abide by the intentions of the lawmakers, allows you to RE a program, but not data that that program uses, if it is protected by tech measures. This means that the legal point of view considers programs and data to be *self-evidently, functionally different for the purposes of RE*. Based on many comments made in this string, that is simply NOT TRUE. Based on those comments, it appears to me that if you can't study the data (format) at the same time that you are REing the program that interprets the data, there is little point to doing the RE. Thus the essential flaw of 1201's RE language is: it hamstrings RE under cover of protecting a digital work, or data. I think this cannot be the outcome the lawmakers intended. Therefore (IMO obviously) RE must mean that you cannot simply decode a work (the data) *without* doing it in an RE effort, or without intending to use the information thus attained in an RE effort. > > > Please, try to put your definition of "program" into words such > > that it will cover: > > > > the intel binary temporarily resident on a sparc machine > > simcity on the store shelves > > > > > > and not: > > > > e-mail > > ASCII files > > driving directions displayed by MapQuest (those > > certainly -are- instructions, aren't they? displayed > > by a computer? will -indirectly- (through you) produce > > a result (you will get where you are going)?) > > Well, here's one quick stab at a definition: > > A computer program is a set of information which may be used to > cause a general-purpose electronic computer to initiate a desired > transformation of some other input data, separate from the program > itself, in order to make it perform a desired process or produce a > desired result. One thing that seems incorrect is that the "other input data" does not have to be separate from the "program itself". So that part should be struck. Rewording/slightly editing: A computer program is a set of information used by a computer to cause ["the computer to initiate" - just put this here to show where I removed it from] a transformation in another set of information or in itself, in order to make it (the program? the computer? the other set of info?) perform a process or produce a result. Scale-wise, this doesn't seem that different from the legal def. Doesn't a computer use data, or what we generally consider non-programs, to cause (the computer to initiate) a transformation in other data? It appears the only real distinction that exists in your def between program and data is the disclaimer "separate from the program itself". Also, do programs only change states of sets of information? What about (guessing here) drivers for my monitor? Here's a program which controls the behavior of a device. We could call the result of the monitor driver's operation "information" but it is not(?) information which another set of information interprets - it's information which *I* interpret. The driver will undoubtedly cause other sets of info to change state; but is that sufficient to call it a program, when it leaves out the most important function of the driver? > > [Exegesis: the program's behavior must depend on the input in some > nontrivial way; according to this definition, a list of instructions > which causes a computer to produce the same result regardless of the > inputs that are offered is encoded data, and not a program.] I'm no expert, but this sounds like you're saying that "Hello World" isn't a program. "Hello World" is an instruction set which causes a computer to produce the same result regardless of inputs offered. > > If "general-purpose electronic computer" is understood to mean > Turing-equivalent electronic devices, then I believe this definition > covers all your cases. It also covers declarative systems such as > spreadsheets, whose elements state relationships but aren't obviously > "instructions" per se. > > It does require a "program" to respond to inputs, which excludes > "programs" which simply print the digits of pi, or print "Hello World"? and other "bad > benchmarks", but I'm comfortable with that. I can't see any reason to > draw legal distinctions between, say, a "program" which just makes > fancy pictures and an mpeg of its output, since there is no functional > difference between the two; they are, in effect, different encodings > of the same video clip. The same goes for PostScript documents, > neatly agreeing with ordinary usage there. I don't understand how we can be comfortable with "hello World" not being a program, because I can easily imagine that electronic books, for example, might not be, in principle, any more complicated. Is a DVD completely different? Under your def, if the programmers of a DVD didn't separate the "program" and "data" - that which could receive input, and that which couldn't - into separate files, it wouldn't be a program. (You might not get much interactivity with the movie that way, but it still would seem like a program to me.) sparky > > Another approach might be to say that a given piece of information is > a computer program if it has purely functional elements which may be > discovered through reverse engineering, but that risks lumping in Word > documents with formatting but no macros. > > But I'm not sure that further discussion of this issue is on-topic for > this mailing list. > > rst > From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 02:39:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01954 for dvd-discuss-outgoing; Sat, 22 Apr 2000 02:39:25 -0400 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 CAA01951 for ; Sat, 22 Apr 2000 02:39:24 -0400 Received: from bugbug (max01-61.suba.com [206.69.121.253]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id BAA11940 for ; Sat, 22 Apr 2000 01:39:30 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Interesting reading Date: Sat, 22 Apr 2000 01:38:51 -0500 Message-ID: <000b01bfac25$6bfbe160$fd7945ce@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 In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C65@c3100.clearway.com> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know about the specific subjects you mention, but there has been some (small so far) offline talk about the possibility of this growing into something else/bigger/stronger/faster/we have the technology after we've done all we can for the NY case. Anyone who likes this idea is definitely encouraged to stick around. Who knows where it will go? sparky > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Leland Ray > Sent: Friday, April 21, 2000 3:18 PM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] Interesting reading > > > Excuse off topicness, but... > > After we finish with the DMCA, can we go after the laws > that prop up local television stations, and support the > antiquated network/affiliate system? It drives me NUTS > that I cannot even pay to get a station from another city > delivered to me via satellite, internet, or carrier pigeon. > > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Friday, April 21, 2000 1:29 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Interesting reading > > If bad laws are passed to prop up > the "entertainment distribution" industry that is no longer needed it will > only > delay the inevitable and create a few martyrs. Ultimately, freedom, which > underlies the free market, will win out. > From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 09:29:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA09194 for dvd-discuss-outgoing; Sat, 22 Apr 2000 09:29:34 -0400 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 JAA09191 for ; Sat, 22 Apr 2000 09:29:26 -0400 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 JAA01299; Sat, 22 Apr 2000 09:25:34 -0400 Message-Id: <200004221325.JAA01299@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] interoperability (RE redux) In-reply-to: Your message of "Sat, 22 Apr 2000 01:29:15 CDT." <000a01bfac24$14a94160$fd7945ce@bugbug.WinNATDomain> Date: Sat, 22 Apr 2000 09:25:04 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "sparky" writes: : But again, it depends on the context in which we must interpret what : "program" and "data" are. The words of those on the Senate Committe were : that 1201(f) should only apply to *programs*, not to works - by which I : presume, not to the data on which programs work. And, the language of : 1201(f)(1) says that tech measures may be circumvented on a *program* - : which implies, along with the 1201 def of program, that the tech measures on : non-instructions that don't produce a result, the data, may *not* be : circumvented. (This is perhaps a false assumption.) In the Copyright Act the ``work'' is the text that we read, the song that we hear, the flick that we see. It is not tangible. The ``work'' is, however, if it is copyrighted, ``fixed'' in at least one tangible copy or phonorecording. The digital (binary) data stored in the copy or phonorecording is not, I think, the work---except in the cases where the binary data itself is treated as a literary work in its own right. I am not familiar with the reference to the Senate Committee's discussion of 1201(f)---and would appreciate a reference to where I can find it---but I would suggest that the distinction is between reverse engineering the program that that keeps one from viewing (hearing, etc.) the work and reverse engineering the work itself, although I admit that the latter is more likely to involve literary or music or film criticism rather that reverse engineering that is more mechanical and less aesthetic. This is, however, not a strong suggestion. On the other hand, comments in the legislative history are not that strong a constraint, particularly when the comments express an ``intent'' that is at odds with the language of the statute. -- 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 Sat Apr 22 13:32:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15746 for dvd-discuss-outgoing; Sat, 22 Apr 2000 13:32:11 -0400 Received: from orange.fenimore.org (dial171.cybermesa.com [209.12.75.171]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15742 for ; Sat, 22 Apr 2000 13:31:54 -0400 Received: (from paul@localhost) by dial226.roadrunner.com (8.8.7/8.8.7) id LAA00761 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Apr 2000 11:02:03 -0600 Date: Sat, 22 Apr 2000 11:02:02 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000422110201.A565@localhost> References: <200004211532.LAA24815@soggy-fibers.ai.mit.edu> <000701bfac1b$763d8160$fd7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000701bfac1b$763d8160$fd7945ce@bugbug.WinNATDomain>; from sparky@suba.com on Sat, Apr 22, 2000 at 12:27:33AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu <<< No Message Collected >>> From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 14:12:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16525 for dvd-discuss-outgoing; Sat, 22 Apr 2000 14:12:59 -0400 Received: from dial203.roadrunner.com (dial203.cybermesa.com [209.12.75.203]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA16522 for ; Sat, 22 Apr 2000 14:12:56 -0400 Received: (from paul@localhost) by dial203.roadrunner.com (8.8.7/8.8.7) id MAA01466 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Apr 2000 12:17:07 -0600 Date: Sat, 22 Apr 2000 12:17:04 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sony, PlayStation, DVD: Follow-up Message-ID: <20000422121701.A1392@localhost> References: <20000421083511.A553@localhost> <20000421095950.A1265@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000421095950.A1265@localhost>; from fenimore@roadrunner.com on Fri, Apr 21, 2000 at 09:59:51AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here is an earlier quote on ZDNet about Sony's world-wide agreement: [ ... ] Sony's game making unit Sony Computer Entertainment (SCE) said it had found users of PlayStation2, launched two weeks ago in Japan amid huge publicity and frenzied demand, could manipulate it to watch Digital Video Disc (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. [ ... ] Paul Fenimore On Fri, Apr 21, 2000 at 10:06:39AM -0400, Dan Steinberg wrote: > http://www.zdnet.com/zdnn/stories/news/0,4586,2550857,00.html > > The last paragraph is what got me. From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 20:42:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA23840 for dvd-discuss-outgoing; Sat, 22 Apr 2000 20:42:23 -0400 Received: from hotmail.com (f34.law8.hotmail.com [216.33.241.34]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA23837 for ; Sat, 22 Apr 2000 20:42:22 -0400 Received: (qmail 80985 invoked by uid 0); 23 Apr 2000 00:41:56 -0000 Message-ID: <20000423004156.80984.qmail@hotmail.com> Received: from 63.203.159.67 by www.hotmail.com with HTTP; Sat, 22 Apr 2000 17:41:56 PDT X-Originating-IP: [63.203.159.67] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sun, 23 Apr 2000 00:41:56 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 Maybe a possible definition of a program can be as such: program - a set of instructions that run indepently. That it to mean that when I run MS Word, I double click on the winword.exe file. That is the program because it runs independently of other processes, like the .dll files that make the windows for the program and the ASCII interpretation of the word documents, which are intended to be the data of the program. By this definition, DVD's are not programs because they require the independent program which is the DVD player, hardware or software. Does this sound like a reasonable definition? Richard ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 21:07:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24314 for dvd-discuss-outgoing; Sat, 22 Apr 2000 21:07:03 -0400 Received: from dns2.caprock-spur.com (mail.caprock-spur.com [216.167.146.4] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA24311 for ; Sat, 22 Apr 2000 21:07:01 -0400 Received: from caprock-spur.com ([216.167.146.106]) by dns2.caprock-spur.com (Post.Office MTA v3.5.3 release 223 ID# 0-65272U3000L300S0V35) with ESMTP id com for ; Sat, 22 Apr 2000 20:05:51 -0500 Message-ID: <39024BDE.CDD6FFD0@caprock-spur.com> Date: Sun, 23 Apr 2000 01:03:26 +0000 From: Ronald X-Mailer: Mozilla 4.61 [en] (X11; I; Linux 2.2.13-7mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: "dvd-discuss@eon.law.harvard.edu" Subject: [dvd-discuss] Might be of interest 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 Greetings... I have been a lurker on this list for a while now. And I thought this might be of interest. I get a buisness magazine for videostores called Video Business ( www.videobusiness.com ) and found a couple of articles of interest. The first on is about how consumers copying video tapes caused big losses to the industry. http://206.236.152.81/news/P6113.asp The second is about a copy-protection standard for D-VHS (digital VHS). http://206.236.152.81/news/P6059.asp I wonder how long this one will last? Sorry for the intrusion... Ronald From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 22:36:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26306 for dvd-discuss-outgoing; Sat, 22 Apr 2000 22:36:13 -0400 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 WAA26303 for ; Sat, 22 Apr 2000 22:36:11 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 12jCDO-0006RS-00 for ; Sat, 22 Apr 2000 21:33:42 -0500 Date: Sat, 22 Apr 2000 21:33:42 -0500 (CDT) From: Tim Neu To: "dvd-discuss@eon.law.harvard.edu" Subject: Re: [dvd-discuss] Might be of interest In-Reply-To: <39024BDE.CDD6FFD0@caprock-spur.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, 23 Apr 2000, Ronald wrote: > Greetings... > > I have been a lurker on this list for a while now. And I thought this > might be of interest. I get a buisness magazine for videostores called > Video Business ( www.videobusiness.com ) and found a couple of articles > of interest. > > The first on is about how consumers copying video tapes caused big > losses to the industry. > > http://206.236.152.81/news/P6113.asp Very interesting... A company that makes a living providing anti-copying measures provides statistics on video copying... Seems "biased" to say the least... =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Sat, 22 Apr 2000 22:56:44 -0400 Received: by c3100.clearway.com with Internet Mail Service (5.5.2650.21) id <20028K1T>; Sat, 22 Apr 2000 22:58:48 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4C73@c3100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] source code, speech, and moral rights Date: Sat, 22 Apr 2000 22:58:44 -0400 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 Is there a consequence for declaring source code speech, and the application of moral rights? Most companies I have worked for have asked me to sign a non-disclosure as a condition of employment. Some of these are remarkably broad, saying that every idea I have while under the company's employment is the property of the company. One agreement I saw included a clause that the company would be allowed to modify my work in any respect, and display it publicly, even if the alteration produced a work that defamed me. Now if I were being asked to paint portraits, even though the resulting works would be owned by the company I would retain certain rights. For instance, the company might not be able to remove my signature from the work. Do authors of books also retain moral rights? Do authors of software, if software is speech? From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 23:10:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27121 for dvd-discuss-outgoing; Sat, 22 Apr 2000 23:10:31 -0400 Received: from waltz.rahul.net (postfix@waltz.rahul.net [192.160.13.9]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA27118 for ; Sat, 22 Apr 2000 23:10:30 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 51B1899D4F; Sat, 22 Apr 2000 20:10:37 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 2D9CF93B37 for ; Sat, 22 Apr 2000 20:10:37 -0700 (PDT) Date: Sat, 22 Apr 2000 20:10:36 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <20000423004156.80984.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 Sun, 23 Apr 2000, Richard Ramos wrote: > Maybe a possible definition of a program can be as such: > > program - a set of instructions that run indepently. > > That it to mean that when I run MS Word, I double click on the winword.exe > file. That is the program because it runs independently of other processes, > like the .dll files that make the windows for the program and the ASCII > interpretation of the word documents, which are intended to be the data of > the program. > > By this definition, DVD's are not programs because they require the > independent program which is the DVD player, hardware or software. > > Does this sound like a reasonable definition? No. It would mean that all programs in interpreted languages don't count (even Emacs Lisp or Javascript). Besides, an operating system is a program. Windows programs require Windows to operate, so does that mean they're not programs? From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 23:30:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27433 for dvd-discuss-outgoing; Sat, 22 Apr 2000 23:30:08 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA27430 for ; Sat, 22 Apr 2000 23:30:07 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id XAA23568 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Apr 2000 23:29:27 -0400 (EDT) Date: Sat, 22 Apr 2000 23:29:27 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] interoperability (RE redux) Message-ID: <20000422232927.F23168@ils.unc.edu> References: <20000423004156.80984.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from arromdee@rahul.net on Sat, Apr 22, 2000 at 08:10:36PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > Maybe a possible definition of a program can be as such: Just a quick note on this, and apologies if someone mentioned it and I missed it. All modern computers operate on something called the "stored program concept." This was invented by John VonNeumann. It means that programs and data are held in the same memory, and may both be acted on by the CPU. I mention this to support my opinion that it's not going to be possible to come up with a usable definition of a "program" that somehow separates data, processes and algorithms. Furthermore, the implementation of DVDs very much muddies the distinction. On my SouthPark DVD, you can play the movie, but you can also do interactive stuff like select scenes. Even though you use a DVD player program to play the DVD data, the DVD data in turn include one or more programs. My advice to us is to avoid trying to come up with a definition, and instead perhaps think of demonstrations of how it's impossible to distinguish "program" from "data." This might be a more useful attack on the DMCA, by pointing out another unclear aspect. -- Greg From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 22 23:42:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27684 for dvd-discuss-outgoing; Sat, 22 Apr 2000 23:42:09 -0400 Received: from dial63.roadrunner.com (dial63.cybermesa.com [209.12.75.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA27681 for ; Sat, 22 Apr 2000 23:42:04 -0400 Received: (from paul@localhost) by dial63.roadrunner.com (8.8.7/8.8.7) id VAA04123 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Apr 2000 21:46:23 -0600 Date: Sat, 22 Apr 2000 21:46:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] source code, speech, and moral rights Message-ID: <20000422214621.A3876@localhost> References: <611C0CE12596D311B466009027D5E7591E4C73@c3100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C73@c3100.clearway.com>; from Ray@clearway.com on Sat, Apr 22, 2000 at 10:58:44PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Apr 22, 2000 at 10:58:44PM -0400, Leland Ray wrote: > > Is there a consequence for declaring source code speech, > and the application of moral rights? Moral right under s.106A apply to works of visual art. > Most companies I have worked for have asked me to sign a non-disclosure > as a condition of employment. Some of these are remarkably broad, > saying that every idea I have while under the company's employment > is the property of the company. I don't believe this is related to copyright law. > One agreement I saw included a clause that the company would > be allowed to modify my work in any respect, and display it publicly, > even if the alteration produced a work that defamed me. For works of visual art, section 106A may have something to say about such a clause. Other copyrighted material is a different story. > Now if I were being asked to paint portraits, even though the resulting > works would be owned by the company I would retain certain rights. For > instance, the company might not be able to remove my signature from the > work. There is a category of copyrighted material which is "made-for-hire." If a work is "made-for-hire," the natural person who wrote it is _not_ the "author." > Do authors of books also retain moral rights? Do authors of software, > if software is speech? It seems that moral rights in the United States only apply in cases involving a work of visual art. Paul Fenimore Sec. 106A. Rights of certain authors to attribution and integrity (a) Rights of Attribution and Integrity. - Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art - (1) shall have the right - (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and (3) subject to the limitations set forth in section 113(d), shall have the right - (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. (b) Scope and Exercise of Rights. - Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work. (c) Exceptions. - (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A). (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of ''work of visual art'' in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a). (d) Duration of Rights. - (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author. (2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106. (3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author. (4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire. (e) Transfer and Waiver. - (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work. From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 23 00:30:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28753 for dvd-discuss-outgoing; Sun, 23 Apr 2000 00:30:58 -0400 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 AAA28750 for ; Sun, 23 Apr 2000 00:30:57 -0400 Received: from bugbug (max01-46.suba.com [206.69.121.238]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id XAA00493 for ; Sat, 22 Apr 2000 23:30:58 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Sat, 22 Apr 2000 23:30:19 -0500 Message-ID: <000001bfacdc$a1b2dea0$ee7945ce@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: <20000422232927.F23168@ils.unc.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 > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Greg Newby > Sent: Saturday, April 22, 2000 10:29 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] interoperability (RE redux) > > > > > Maybe a possible definition of a program can be as such: > > Just a quick note on this, and apologies if someone mentioned it > and I missed it. > > All modern computers operate on something called the "stored > program concept." This was invented by John VonNeumann. It > means that programs and data are held in the same memory, and > may both be acted on by the CPU. > > I mention this to support my opinion that it's not going to > be possible to come up with a usable definition of a "program" > that somehow separates data, processes and algorithms. Coming up with a all-purpose def of these things is not going to be useful anyway; if we attempt to come up with a def, it should address the situation of RE - since that is where the distinction becomes important. (Or *might* - it's possible that the judge will not see any real import to the distinction between programs and data in regard to RE anyway.) So far I haven't heard anything to suggest that, RE-wise, there can be a solid distinction between programs and data. Of course the defense will have to make a positive effort to convince the judge of that, but if there are no persuading arguments to the contrary, that's half (or more) of the battle. sparky > > Furthermore, the implementation of DVDs very much muddies the > distinction. On my SouthPark DVD, you can play the movie, but you > can also do interactive stuff like select scenes. Even though > you use a DVD player program to play the DVD data, the DVD data > in turn include one or more programs. > > My advice to us is to avoid trying to come up with a definition, > and instead perhaps think of demonstrations of how it's impossible > to distinguish "program" from "data." This might be a more > useful attack on the DMCA, by pointing out another unclear aspect. > > -- Greg > From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 23 02:31:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA30667 for dvd-discuss-outgoing; Sun, 23 Apr 2000 02:31:55 -0400 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 CAA30664 for ; Sun, 23 Apr 2000 02:31:53 -0400 Received: from [38.32.10.209] (helo=ip209.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 12jFw1-0006kC-00; Sun, 23 Apr 2000 02:32:02 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Might be of interest Date: Sun, 23 Apr 2000 02:26:34 -0400 Message-ID: References: <39024BDE.CDD6FFD0@caprock-spur.com> In-Reply-To: <39024BDE.CDD6FFD0@caprock-spur.com> X-Mailer: Forte Agent 1.8/32.548 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 CAA30665 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 23 Apr 2000 01:03:26 +0000, Ronald wrote: >The first on is about how consumers copying video tapes caused big >losses to the industry. > >http://206.236.152.81/news/P6113.asp This is great. Macrovision tracking consumer copying is like a utility claiming million dollar losses because a few customers left some lights off. >"There's no piracy here yet," said Carol Flaherty, Macrovision's >VP of video copy protection. "This is us sitting at home doing >this." No kidding. At least Carol admits it. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 23 11:47:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA08004 for dvd-discuss-outgoing; Sun, 23 Apr 2000 11:47:04 -0400 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 LAA08001 for ; Sun, 23 Apr 2000 11:47:03 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with SMTP id LAA13397; Sun, 23 Apr 2000 11:47:12 -0400 (EDT) Message-Id: <4.1.20000422152111.01fc26c0@law.harvard.edu> Message-Id: <4.1.20000422152111.01fc26c0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sun, 23 Apr 2000 11:49:50 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] interoperability (RE redux) Cc: junger@samsara.law.cwru.edu In-Reply-To: <200004221325.JAA01299@samsara.law.cwru.edu> References: <000a01bfac24$14a94160$fd7945ce@bugbug.WinNATDomain> 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 09:25 AM 4/22/00 -0400, junger@samsara.law.cwru.edu wrote: >I am not familiar with the reference to the Senate Committee's discussion >of 1201(f)---and would appreciate a reference to where I can find it---but >I would suggest that the distinction is between reverse engineering the >program that that keeps one from viewing (hearing, etc.) the work and >reverse engineering the work itself, although I admit that the latter >is more likely to involve literary or music or film criticism rather >that reverse engineering that is more mechanical and less aesthetic. > The Senate Report is at with RE discussion beginning at the line "Subsections (g)-(j)--Interoperability of computer programs" It doesn't add much interpretation to what's now at 1201(f). Where it attempts to make the program/data distinction, it refers to "computer programs" as opposed to "works generally, such as music or audiovisual works." I'd say the drafters were _trying_ to keep DVD movies from falling under the reverse engineering exception, but there's no coherent way to draw the line there. Who can say that one is circumventing to view the movie without a player key rather than to make the DVD program chains operate on a platform for which a DVD player is not otherwise available? " 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. " I keep thinking we should be able to make the plaintiffs victims of their own overzealous protection -- because they tried to include too much behind the access controls, they can't complain when those controls are breached for a non-infringing purpose. That may be a track better suited to constitutional arguments against legislation than against private restrictions, however. --Wendy Wendy Seltzer : wendy@seltzer.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 Sun Apr 23 20:35:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22453 for dvd-discuss-outgoing; Sun, 23 Apr 2000 20:35:34 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA22450 for ; Sun, 23 Apr 2000 20:35:33 -0400 Message-ID: <20000424003514.2354.qmail@web512.mail.yahoo.com> Received: from [24.28.154.65] by web512.mail.yahoo.com; Sun, 23 Apr 2000 17:35:13 PDT Date: Sun, 23 Apr 2000 17:35:13 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Interesting reading 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: > I don't know about the specific subjects you mention, but there has been > some (small so far) offline talk about the possibility of this growing into > something else/bigger/stronger/faster/we have the technology after we've > done all we can for the NY case. Anyone who likes this idea is definitely > encouraged to stick around. Who knows where it will go? I've had some ideas about how to apply open development methods in the legal arena. One specific idea is to draft an alternative to UCC article 2B (aka UCITA) and try to get it on the ballot in states that have direct voting. If this had a catchy title like "The Software Consumer Protection Act" - I bet it would be an easy sell at the polls. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Sun Apr 23 23:41:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28884 for dvd-discuss-outgoing; Sun, 23 Apr 2000 23:41:06 -0400 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 XAA28881 for ; Sun, 23 Apr 2000 23:41:05 -0400 Received: from bugbug (max01-18.suba.com [206.69.121.210]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id WAA19980 for ; Sun, 23 Apr 2000 22:41:13 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Interesting reading Date: Sun, 23 Apr 2000 22:40:35 -0500 Message-ID: <000001bfad9e$d97ab980$d27945ce@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: <20000424003514.2354.qmail@web512.mail.yahoo.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 Bryan wrote: > > --- sparky wrote: > > I don't know about the specific subjects you mention, but there has been > > some (small so far) offline talk about the possibility of this > growing into > > something else/bigger/stronger/faster/we have the technology after we've > > done all we can for the NY case. Anyone who likes this idea is > definitely > > encouraged to stick around. Who knows where it will go? > > I've had some ideas about how to apply open development methods > in the legal > arena. > > One specific idea is to draft an alternative to UCC article 2B > (aka UCITA) and > try to get it on the ballot in states that have direct voting. If > this had a > catchy title like "The Software Consumer Protection Act" - I bet > it would be an > easy sell at the polls. Where do we get the current doc? > > > > > __________________________________________________ > Do You Yahoo!? > Send online invitations with Yahoo! Invites. > http://invites.yahoo.com > From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 24 07:13:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA04781 for dvd-discuss-outgoing; Mon, 24 Apr 2000 07:13:19 -0400 Received: from kruuna.Helsinki.FI (sendmail@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA04778 for ; Mon, 24 Apr 2000 07:13:17 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e3OBDRc09913 for ; Mon, 24 Apr 2000 14:13:28 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 24 Apr 2000 14:13:27 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] interoperability (RE redux) In-Reply-To: <000101bfab28$37702080$f47945ce@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 Thu, 20 Apr 2000, sparky wrote: >Even though I'm finding the legal def more and more of a problem, I've still >got one more shot in me: what would you say to a "programs read" approach? >Programs are instruction sets that read other information, data (whatever >that is), other instruction sets.. "Data" would be whatever information set >is incapable of "reading" other data. How about a program which simply does some hardwired calculation each time it is invoked? Like an event handler on an HTML page? Could even be in a TC language... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 24 08:46:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA07719 for dvd-discuss-outgoing; Mon, 24 Apr 2000 08:46:32 -0400 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 IAA07716 for ; Mon, 24 Apr 2000 08:46:30 -0400 Received: from bugbug (max01-08.suba.com [206.69.121.200]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id HAA27832 for ; Mon, 24 Apr 2000 07:46:42 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] interoperability (RE redux) Date: Mon, 24 Apr 2000 07:46:03 -0500 Message-ID: <000201bfadeb$0cdd1b00$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 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 wrote: > > On Thu, 20 Apr 2000, sparky wrote: > > >Even though I'm finding the legal def more and more of a > problem, I've still > >got one more shot in me: what would you say to a "programs read" > approach? > >Programs are instruction sets that read other information, data (whatever > >that is), other instruction sets.. "Data" would be whatever > information set > >is incapable of "reading" other data. > > How about a program which simply does some hardwired calculation each time > it is invoked? Like an event handler on an HTML page? Could even > be in a TC > language... > > Sampo Syreeni , aka decoy, student/math/Helsinki university > > :) Yeah, figgered that bullet would be like the kind Quickdraw McGraw's deputy would shoot.. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 24 13:24:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21398 for dvd-discuss-outgoing; Mon, 24 Apr 2000 13:24:15 -0400 Received: from nospam (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA21379 for ; Mon, 24 Apr 2000 13:23:46 -0400 Date: Mon, 24 Apr 2000 13:23:46 -0400 From: nospam@nospam.com Message-Id: <200004241723.NAA21379@eon.law.harvard.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Might be of interest Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tim Neu wrote: > > The first on is about how consumers copying video tapes caused big > > losses to the industry. > > > > http://206.236.152.81/news/P6113.asp > > Very interesting... A company that makes a living providing anti-copying > measures provides statistics on video copying... > > Seems "biased" to say the least... And you didn't even get to the best part: 32% of VCR households had illegal copies of prerecorded videocassettes. Of those copies, 72% were made from cassettes from video stores; 39% were duped from personal video collections, and 44% were copied from cassettes supplied by a friend or relative. Wow, Macrovision has accounted for 155% of copied tapes! :) Biased? More like bogus. From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 24 13:41:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22814 for dvd-discuss-outgoing; Mon, 24 Apr 2000 13:41:10 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22811 for ; Mon, 24 Apr 2000 13:41:08 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12jmrI-0005ei-00; Mon, 24 Apr 2000 10:41:20 -0700 Date: Mon, 24 Apr 2000 10:41:20 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Might be of interest Message-ID: <20000424104120.G1696@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200004241723.NAA21379@eon.law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004241723.NAA21379@eon.law.harvard.edu>; from nospam@nospam.com on Mon, Apr 24, 2000 at 01:23:46PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu nospam@nospam.com writes: > Tim Neu wrote: > > > > The first on is about how consumers copying video tapes caused big > > > losses to the industry. > > > > > > http://206.236.152.81/news/P6113.asp > > > > Very interesting... A company that makes a living providing anti-copying > > measures provides statistics on video copying... > > > > Seems "biased" to say the least... > > > And you didn't even get to the best part: > > 32% of VCR households had > illegal copies of prerecorded If those copies were from the 1980s, they might not be illegal. Non-commercial home copying was considered legal in many circumstances before the LaMacchia case's aftermath. > videocassettes. > > Of those copies, 72% were made > from cassettes from video > stores; 39% were duped from > personal video collections, and > 44% were copied from cassettes > supplied by a friend or > relative. I assume that they meant "of those _households_, 72% had copies that were made", etc. > Wow, Macrovision has accounted for 155% of copied tapes! :) I hear that DeCSS was implicated in over 125% of DVD piracy cases in the past decade. -- 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 Apr 24 16:22:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28729 for dvd-discuss-outgoing; Mon, 24 Apr 2000 16:22:18 -0400 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 QAA28726 for ; Mon, 24 Apr 2000 16:22:17 -0400 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 QAA06434 for ; Mon, 24 Apr 2000 16:22:20 -0400 (EDT) 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 QAA27170 for ; Mon, 24 Apr 2000 16:19:55 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000424003514.2354.qmail@web512.mail.yahoo.com> References: <20000424003514.2354.qmail@web512.mail.yahoo.com> Date: Mon, 24 Apr 2000 16:16:54 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: RE: [dvd-discuss] Interesting reading 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 5:35 PM -0700 4/23/2000, Bryan Taylor wrote: >... >I've had some ideas about how to apply open development methods in the legal >arena. > >One specific idea is to draft an alternative to UCC article 2B (aka UCITA) and >try to get it on the ballot in states that have direct voting. If this had a >catchy title like "The Software Consumer Protection Act" - I bet it >would be an >easy sell at the polls. > That sounds like a very good project. It might also be possible to sell it through the UCC process itself. If I recall correctly, UCTIA split off after it could not get consensus from the National Conference of Commissioners on Uniform State Laws. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Apr 24 19:02:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA06680 for dvd-discuss-outgoing; Mon, 24 Apr 2000 19:02:32 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA06677 for ; Mon, 24 Apr 2000 19:02:30 -0400 Message-ID: <20000424230213.2404.qmail@web515.mail.yahoo.com> Received: from [24.28.154.65] by web515.mail.yahoo.com; Mon, 24 Apr 2000 16:02:13 PDT Date: Mon, 24 Apr 2000 16:02:13 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Interesting reading 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: > > One specific idea is to draft an alternative to UCC article 2B > > (aka UCITA) and try to get it on the ballot in states that have > > direct voting. If this had a catchy title like "The Software Consumer > > Protection Act" - I bet it would be an easy sell at the polls. > > Where do we get the current doc? There is a wealth of information on UCITA at: http://www.badsoftware.com/uccindex.htm An interesting article from the above site that relates to Article 2B and Reverse Engineering is: http://www.badsoftware.com/reversea.htm __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 12:09:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31393 for dvd-discuss-outgoing; Tue, 25 Apr 2000 12:09:13 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA31390 for ; Tue, 25 Apr 2000 12:09:11 -0400 Received: (qmail 5366 invoked by uid 502); 25 Apr 2000 16:11:30 -0000 Date: Tue, 25 Apr 2000 12:11:30 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Holiday Greetings From Disney Message-ID: <20000425121130.A27466@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 didn't see any reference to this here, and normally I'd be the last person to go posting things found on 2600, but this sounds legit so here it is. Apparently Michael Eisner over at Disney sent out a special Easter holiday greeting to a large number of Disney employees recently. 2600 received a copy and put up an annotated copy at http://www.2600.com/news/2000/0423.html. Here is the original posted text, without annotations: Dear Fellow Cast Members: In several past e-mails, I have written you about the tremendous opportunities represented by the Internet. Today, I offer a caveat. While the Internet continues to be present great potential to our company, we first must fully address the issue of piracy. For some reason piracy has been on my mind. Maybe this is because I keep reading about the seriousness of it, or maybe it is because I know a digital copy of a film is a perfect copy. Or maybe it is because I know that the Internet is a worldwide delivery system honoring no borders. Or maybe it is because I just needed something to speak about at the Variety/Schroeder's entertainment industry conference in New York City 10 days ago. Probably it is a little of all the above. By "piracy," I'm not talking about the comical characters sailing the high seas at the Pirates of the Caribbean. Rather, I'm talking about an underground of secretive and sequestered pirates of encryption - the hackers who shamelessly assert that anything they can get their hands on is legally theirs. These Internet pirates try to hide behind some contrived New Age arguments of the Internet, but all they are really doing is trying to make a case for Age Old thievery. When they hack a DVD and then distribute it on the web, it is no different than if someone puts a quarter in a newspaper machine and then takes out all the papers, which, of course, would be illegal and morally wrong. The pirates will argue that this analogy is unfair, maintaining that all they're doing is cracking a digital code. But, by that standard, it would be justifiable to crack a bank code and transfer the funds from someone else's account into your own. There's just no way around it - theft is theft, whether it is enabled by a handgun or a computer keyboard. Of course, piracy has been around a long time. Many of you probably remember a very funny "Seinfeld" episode (I suppose that's redundant - they all were funny, except maybe for the last one) in which Jerry becomes an "auteur" at making illegal copies of movies by videotaping them off the screen at the local multiplex. But, piracy is anything but funny ... especially now that, instead of making one bad quality videotape for sale on the street, these digital pirates could soon be making unlimited numbers of high quality copies available on the Internet. One of the fallacies of the piracy debate is that it's really just a conflict of the pro-technology members of the "New Media" against the anti-technology members of the "Old Media." This characterization couldn't be more wrong. At Disney we embrace technology. And we always have. Throughout his career, Walt Disney recognized new technology as the friend of the storyteller. And, at Disney today, we are not only seizing the tremendous possibilities offered by technology in movies, as with "Dinosaur" and "Toy Story," but we are also active participants in the expansion of the Internet with our GO.com family of sites. We intend to continue to devote resources to the Internet ... but not if this requires surrendering the rights to things we own. With this in mind, our company is undertaking a wide-ranging strategy to make the Internet truly safe for intellectual property. This strategy consists of five main elements. First of all, we are turning to our representatives in Washington. Intellectual property rights are really no different from ordinary property rights. If you own something, you expect the government to respect your right to keep it from being stolen. Secondly, we are working with governments around the world to respect our rights. We are actively involved in the Global Business Dialogue on Electronic Commerce, and our company is serving as chair of the Intellectual Property Work Group. The third element is education. Working with The Motion Picture Association of America, we are advocating a more aggressive campaign to make people aware of intellectual property rights on the Internet. Most people are honest and want to do the right thing. But they can't do the right thing if they don't know that they're doing a wrong thing. Fourth, we believe that the entertainment industry as a whole should take meaningful technological measures. Working in cooperation with technology companies, we need to develop innovative and flexible encryption devices that can stay one step ahead of the hackers. Our fifth initiative is economic. History has shown that one of the best deterrents to pirated product is providing legitimate product at appropriate prices. In the music industry, we have already seen that people will gladly pay fair prices for legally-produced product even when it can be easily reproduced and unlawful copies can be easily acquired. With every passing day, I believe we are getting closer to a time when the Internet will become another important revenue stream for the studios. This is what happened with Pay TV in the '70s and with Home Video in the '80s. If we act appropriately and aggressively in combating the pirates, then this could be the dawn of a new era of opportunity for companies that consistently create great entertainment ... and there's one in particular that comes to mind. So that's what has been on my mind the last couple of weeks, that as well as the strong showing of our company, especially at our parks and TV networks. Life is good. Have a nice Easter/Passover Weekend. Michael -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 14:29:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07673 for dvd-discuss-outgoing; Tue, 25 Apr 2000 14:29:56 -0400 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 OAA07670 for ; Tue, 25 Apr 2000 14:29:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGQ06>; Tue, 25 Apr 2000 11:30:55 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AEF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Holiday Greetings From Disney Date: Tue, 25 Apr 2000 11:30:54 -0700 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 He says "When they hack a DVD and then distribute it on the web...". Does anybody know of any case where this has actually happened? Although MP3 exchange in violation of copyright concerns is rampant ... has there been -any- substantiated case of a DVD distributed over the net? As has been pointed out, the sheer size of the VOB files seems to argue against this having ever happened. -- -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 Tue Apr 25 14:51:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08893 for dvd-discuss-outgoing; Tue, 25 Apr 2000 14:51:31 -0400 Received: from web206.mail.yahoo.com (web206.mail.yahoo.com [128.11.68.106]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA08879 for ; Tue, 25 Apr 2000 14:51:25 -0400 Received: (qmail 14739 invoked by uid 60001); 25 Apr 2000 18:51:35 -0000 Message-ID: <20000425185135.14738.qmail@web206.mail.yahoo.com> Received: from [64.24.64.76] by web206.mail.yahoo.com; Tue, 25 Apr 2000 11:51:35 PDT Date: Tue, 25 Apr 2000 11:51:35 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] Holiday Greetings From Disney 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 very interesting. Can we just have the Internet declared as a library and finish all this? I mean, it fits the definition... -marcia --- greslin@linuxpower.org wrote: > > I didn't see any reference to this here, and > normally I'd be the > last person to go posting things found on 2600, but > this sounds > legit so here it is. > > Apparently Michael Eisner over at Disney sent out a > special > Easter holiday greeting to a large number of Disney > employees > recently. 2600 received a copy and put up an > annotated copy > at http://www.2600.com/news/2000/0423.html. > > Here is the original posted text, without > annotations: > > > Dear Fellow Cast Members: > > In several past e-mails, I have written you about > the tremendous > opportunities represented by the Internet. Today, I > offer a caveat. While the > Internet continues to be present great potential to > our company, we first must > fully address the issue of piracy. > > For some reason piracy has been on my mind. Maybe > this is because I keep > reading about the seriousness of it, or maybe it is > because I know a digital > copy of a film is a perfect copy. Or maybe it is > because I know that the > Internet is a worldwide delivery system honoring no > borders. Or maybe it is > because I just needed something to speak about at > the Variety/Schroeder's > entertainment industry conference in New York City > 10 days ago. Probably it > is a little of all the above. > > By "piracy," I'm not talking about the comical > characters sailing the high > seas at the Pirates of the Caribbean. Rather, I'm > talking about an > underground of secretive and sequestered pirates of > encryption - the hackers > who shamelessly assert that anything they can get > their hands on is legally > theirs. These Internet pirates try to hide behind > some contrived New Age > arguments of the Internet, but all they are really > doing is trying to make a > case for Age Old thievery. > > When they hack a DVD and then distribute it on the > web, it is no different > than if someone puts a quarter in a newspaper > machine and then takes out all > the papers, which, of course, would be illegal and > morally wrong. The pirates > will argue that this analogy is unfair, maintaining > that all they're doing is > cracking a digital code. But, by that standard, it > would be justifiable to crack > a bank code and transfer the funds from someone > else's account into your > own. There's just no way around it - theft is theft, > whether it is enabled by a > handgun or a computer keyboard. > > Of course, piracy has been around a long time. Many > of you probably > remember a very funny "Seinfeld" episode (I suppose > that's redundant - they > all were funny, except maybe for the last one) in > which Jerry becomes an > "auteur" at making illegal copies of movies by > videotaping them off the > screen at the local multiplex. But, piracy is > anything but funny ... especially > now that, instead of making one bad quality > videotape for sale on the street, > these digital pirates could soon be making unlimited > numbers of high quality > copies available on the Internet. > > One of the fallacies of the piracy debate is that > it's really just a conflict of > the pro-technology members of the "New Media" > against the > anti-technology members of the "Old Media." This > characterization couldn't > be more wrong. At Disney we embrace technology. And > we always have. > Throughout his career, Walt Disney recognized new > technology as the friend > of the storyteller. And, at Disney today, we are not > only seizing the > tremendous possibilities offered by technology in > movies, as with "Dinosaur" > and "Toy Story," but we are also active participants > in the expansion of the > Internet with our GO.com family of sites. We intend > to continue to devote > resources to the Internet ... but not if this > requires surrendering the rights to > things we own. With this in mind, our company is > undertaking a wide-ranging > strategy to make the Internet truly safe for > intellectual property. This > strategy consists of five main elements. > > First of all, we are turning to our representatives > in Washington. Intellectual > property rights are really no different from > ordinary property rights. If you own > something, you expect the government to respect your > right to keep it from > being stolen. > > Secondly, we are working with governments around the > world to respect our > rights. We are actively involved in the Global > Business Dialogue on > Electronic Commerce, and our company is serving as > chair of the Intellectual > Property Work Group. > > The third element is education. Working with The > Motion Picture Association > of America, we are advocating a more aggressive > campaign to make people > aware of intellectual property rights on the > Internet. Most people are honest > and want to do the right thing. But they can't do > the right thing if they don't > know that they're doing a wrong thing. > > Fourth, we believe that the entertainment industry > as a whole should take > meaningful technological measures. Working in > cooperation with technology > companies, we need to develop innovative and > flexible encryption devices > that can stay one step ahead of the hackers. > > Our fifth initiative is economic. History has shown > that one of the best > deterrents to pirated product is providing > legitimate product at appropriate > prices. In the music industry, we have already seen > that people will gladly > pay fair prices for legally-produced product even > when it can be easily > reproduced and unlawful copies can be easily > acquired. > > With every passing day, I believe we are getting > closer to a time when the > Internet will become another important revenue > stream for the studios. This > is what happened with Pay TV in the '70s and with > Home Video in the '80s. > If we act appropriately and aggressively in > combating the pirates, then this > could be the dawn of a new era of opportunity for > companies that consistently > create great entertainment ... and there's one in > particular that comes to > mind. > > So that's what has been on my mind the last couple > of weeks, that as well as > the strong showing of our company, especially at our > parks and TV networks. > Life is good. Have a nice Easter/Passover Weekend. > > > Michael > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) > www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at > www.cssfaq.org! > > ===== http://www.merchantsave.com/3d.html __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 14:58:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10008 for dvd-discuss-outgoing; Tue, 25 Apr 2000 14:58:22 -0400 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 OAA10005 for ; Tue, 25 Apr 2000 14:58:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGRBW>; Tue, 25 Apr 2000 11:59:20 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1AF0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Holiday Greetings From Disney Date: Tue, 25 Apr 2000 11:59:19 -0700 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 The Internet is a public library? Now -there's- an interesting concept. Could one of the law-type people on this list find out what is the legal definition of "library" and/or "public library"? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Marcia Wilbur [mailto:mkwilbur@yahoo.com] > Sent: Tuesday, April 25, 2000 11:52 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Holiday Greetings From Disney > > > very interesting. > > Can we just have the Internet declared as a library > and finish all this? > > I mean, it fits the definition... > > -marcia From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 15:02:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA10654 for dvd-discuss-outgoing; Tue, 25 Apr 2000 15:02:36 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA10650 for ; Tue, 25 Apr 2000 15:02:35 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12kAbi-0008MX-00; Tue, 25 Apr 2000 12:02:50 -0700 Date: Tue, 25 Apr 2000 12:02:50 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Holiday Greetings From Disney Message-ID: <20000425120250.R1696@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1AEF@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AEF@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Apr 25, 2000 at 11:30:54AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > He says "When they hack a DVD and then distribute it on the web...". > > Does anybody know of any case where this has actually happened? Although > MP3 exchange in violation of copyright concerns is rampant ... has there > been -any- substantiated case of a DVD distributed over the net? As has > been pointed out, the sheer size of the VOB files seems to argue against > this having ever happened. I've heard that lots of DVDs have been distributed as VCD images; I don't know how many of those were done with DeCSS and how many with other rippers. Probably people who distribute VCD images don't advertise which software they used to produce those images. :-) So, I think the answer to your question is "Sort of" -- but probably not perfect digital copies of a 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 Tue Apr 25 15:48:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14437 for dvd-discuss-outgoing; Tue, 25 Apr 2000 15:48:39 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA14434 for ; Tue, 25 Apr 2000 15:48:37 -0400 Received: (qmail 11080 invoked by uid 502); 25 Apr 2000 19:50:59 -0000 Date: Tue, 25 Apr 2000 15:50:59 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Holiday Greetings From Disney Message-ID: <20000425155059.J27466@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1AEF@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1AEF@mail2.onetouch.com>; from Richard Hartman on Tue, Apr 25, 2000 at 11:30:54AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Apr 25, 2000 at 11:30:54AM -0700, Richard Hartman wrote: > He says "When they hack a DVD and then distribute it on the web...". > > Does anybody know of any case where this has actually happened? Although > MP3 exchange in violation of copyright concerns is rampant ... has there > been -any- substantiated case of a DVD distributed over the net? As has > been pointed out, the sheer size of the VOB files seems to argue against > this having ever happened. I've seen several which claim to be DVD rips being traded over Gnutella. It's also not horribly difficult if you have the space, time and bandwidth. It's only logical to assume that it's being done. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 19:22:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA30343 for dvd-discuss-outgoing; Tue, 25 Apr 2000 19:22:00 -0400 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 TAA30340 for ; Tue, 25 Apr 2000 19:21:58 -0400 Received: from bugbug (max01-39.suba.com [206.69.121.231]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA02374 for ; Tue, 25 Apr 2000 18:22:14 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Holiday Greetings From Disney Date: Tue, 25 Apr 2000 18:21:37 -0500 Message-ID: <000101bfaf0d$00c7e840$e77945ce@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: <20000425155059.J27466@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 Rob wrote: > > On Tue, Apr 25, 2000 at 11:30:54AM -0700, Richard Hartman wrote: > > He says "When they hack a DVD and then distribute it on the web...". > > > > Does anybody know of any case where this has actually happened? > Although > > MP3 exchange in violation of copyright concerns is rampant ... has there > > been -any- substantiated case of a DVD distributed over the net? As has > > been pointed out, the sheer size of the VOB files seems to argue against > > this having ever happened. > > I've seen several which claim to be DVD rips being traded over Gnutella. > It's also not horribly difficult if you have the space, time and > bandwidth. > It's only logical to assume that it's being done. Of course, even if it is being done, Eisner is missing the point, in that classic way which you want to say is purposefully ignorant, though maybe it really is ignorantly purposeful. Ignorosefully porpoise? Anyway he's wrong. Think I'll write a little something. sparky > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Tue Apr 25 21:43:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07471 for dvd-discuss-outgoing; Tue, 25 Apr 2000 21:43:32 -0400 Received: from web213.mail.yahoo.com (web213.mail.yahoo.com [128.11.68.113]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA07468 for ; Tue, 25 Apr 2000 21:43:30 -0400 Received: (qmail 16288 invoked by uid 60001); 26 Apr 2000 01:43:45 -0000 Message-ID: <20000426014345.16287.qmail@web213.mail.yahoo.com> Received: from [64.24.64.101] by web213.mail.yahoo.com; Tue, 25 Apr 2000 18:43:45 PDT Date: Tue, 25 Apr 2000 18:43:45 -0700 (PDT) From: Marcia Wilbur Subject: RE: [dvd-discuss] Holiday Greetings From Disney 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 --- Richard Hartman wrote: > The Internet is a public library? Now -there's- > an interesting concept. > > Could one of the law-type people on this list find > out what is the legal definition of "library" and/or > "public library"? > http://www.dictionary.com/cgi-bin/dict.pl?term=library 1.a that's just a general definition. I couldn't find anything offhand online in Blacks. I am interested in "What 'legal' guidelines a library must follow." (just on a personal level) However, there must be a place that states those guidelines. But of course, then again, we are talking about a digital collection of reference/works... -marcia wilbur > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the > LAW! > > > > -----Original Message----- > > From: Marcia Wilbur [mailto:mkwilbur@yahoo.com] > > Sent: Tuesday, April 25, 2000 11:52 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] Holiday Greetings From > Disney > > > > > > very interesting. > > > > Can we just have the Internet declared as a > library > > and finish all this? > > > > I mean, it fits the definition... > > > > -marcia > __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 02:20:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20118 for dvd-discuss-outgoing; Wed, 26 Apr 2000 02:20:35 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20115 for ; Wed, 26 Apr 2000 02:20:34 -0400 Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id CAA06519 for ; Wed, 26 Apr 2000 02:20:47 -0400 Message-ID: <39068987.D5AB52BA@mindspring.com> Date: Wed, 26 Apr 2000 02:15:35 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre19-dvd i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Holiday Greetings From Disney References: <20000426014345.16287.qmail@web213.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 > > > > very interesting. > > > > > > Can we just have the Internet declared as a > > library > > > and finish all this? > > > > > > I mean, it fits the definition... > > > > > > -marcia I just don't think this is going to fly. It seems antithetical to the spirit of the exception for libraries owing that the internet will be the biggest place for commerce in the coming years. From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 12:01:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05071 for dvd-discuss-outgoing; Wed, 26 Apr 2000 12:01:16 -0400 Received: from web511.mail.yahoo.com (web511.mail.yahoo.com [216.115.104.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA05068 for ; Wed, 26 Apr 2000 12:01:15 -0400 Message-ID: <20000426160102.11115.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 26 Apr 2000 09:01:02 PDT Date: Wed, 26 Apr 2000 09:01:02 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Holiday Greetings From Disney 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 --- Jeff Waller wrote: > > Can we just have the Internet declared as a library > > and finish all this? > > > > I mean, it fits the definition... > > > > -marcia > > I just don't think this is going to fly. It seems antithetical > to the spirit of the exception for libraries owing that > the internet will be the biggest place for commerce in > the coming years. Well the internet is many things to many people. I would certainly say that _some_ aspects of the web are very similar to those of a library - both provide information access to the public, serve to archive and preserve literary information, and are important instruments for research and learning by the public. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 13:10:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09212 for dvd-discuss-outgoing; Wed, 26 Apr 2000 13:10:05 -0400 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 NAA09209 for ; Wed, 26 Apr 2000 13:10:03 -0400 Received: from cdpage.com (cdsl188.dnvr.uswest.net [209.180.250.188]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id KAA07515 for ; Wed, 26 Apr 2000 10:10:39 -0700 (PDT) Message-ID: <3907227F.831C88E1@cdpage.com> Date: Wed, 26 Apr 2000 11:08:15 -0600 From: Dana Parker Organization: DVD Diva X-Mailer: Mozilla 4.72 [en] (Windows NT 5.0; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] More interesting reading References: <20000426160102.11115.qmail@web511.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 http://eng.hss.cmu.edu/bs/41/schalit-sterne.html -- 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 Wed Apr 26 14:35:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15093 for dvd-discuss-outgoing; Wed, 26 Apr 2000 14:35:54 -0400 Received: from hotmail.com (f196.law3.hotmail.com [209.185.241.196]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA15090 for ; Wed, 26 Apr 2000 14:35:52 -0400 Received: (qmail 19872 invoked by uid 0); 26 Apr 2000 18:35:40 -0000 Message-ID: <20000426183540.19871.qmail@hotmail.com> Received: from 209.253.13.30 by www.hotmail.com with HTTP; Wed, 26 Apr 2000 11:35:40 PDT X-Originating-IP: [209.253.13.30] From: "Fire Drake" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Sega Question Date: Wed, 26 Apr 2000 12:35:40 MDT 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 Has anyone wondered if the old 9th Ciruit ruling that other companys could decompile Sega Genesis sofware so other companys could write SW for Genesis applys here? Or has this been brough up b4? ------------------------------------- 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 E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 14:37:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15379 for dvd-discuss-outgoing; Wed, 26 Apr 2000 14:37:23 -0400 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 OAA15376 for ; Wed, 26 Apr 2000 14:37:22 -0400 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id NAA09093 for ; Wed, 26 Apr 2000 13:37:41 -0500 Date: Wed, 26 Apr 2000 13:37:41 -0500 (CDT) From: sam th X-Sender: sam@localhost.localdomain To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] More interesting reading In-Reply-To: <3907227F.831C88E1@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 Wed, 26 Apr 2000, Dana Parker wrote: > > http://eng.hss.cmu.edu/bs/41/schalit-sterne.html > While this was an excellent essay, I had to say that the description of the RIAA as an "industry watchdog group" made me laugh out loud. sam th sam@uchicago.edu http://sam.rh.uchicago.edu From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 15:15:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18197 for dvd-discuss-outgoing; Wed, 26 Apr 2000 15:15:14 -0400 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 PAA18194 for ; Wed, 26 Apr 2000 15:15:12 -0400 Received: from [38.32.77.129] (helo=ip129.bedford7.ma.pub-ip.psi.net) by relay21.smtp.psi.net with smtp (Exim 1.90 #1) for dvd-discuss@eon.law.harvard.edu id 12kXHS-0004j1-00; Wed, 26 Apr 2000 15:15:27 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Billington on NPR Date: Wed, 26 Apr 2000 15:09:58 -0400 Message-ID: X-Mailer: Forte Agent 1.8/32.548 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 PAA18195 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu LOC's James Billington is on NPR "Talk of the Nation" starting a few minutes ago (~3 p.m. EDT). Librarian of audio and film resources is also supposed to be on... http://search.npr.org/cf/cmn/cmnpd01fm.cfm?PrgDate=04/26/2000&PrgID=5 __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 15:42:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19054 for dvd-discuss-outgoing; Wed, 26 Apr 2000 15:42:22 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA19032 for ; Wed, 26 Apr 2000 15:42:20 -0400 Message-ID: <20000426194204.12973.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 26 Apr 2000 12:42:04 PDT Date: Wed, 26 Apr 2000 12:42:04 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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 --- Fire Drake wrote: > Has anyone wondered if the old 9th Ciruit ruling that other companys > could decompile Sega Genesis sofware so other companys could write > SW for Genesis applys here? Or has this been brough up b4? The Senate Legislative history specifically named this case as a motivating factor for 1201(f). The exact cite is Sega Enterprises Ltd. v Accolade, Inc., 977 F.2d 1510(9th Cir. 1992.) http://caselaw.findlaw.com/cgi-bin/getcase.plcourt=9th&f=2&invol=1510&vol=977&exact=1 If there is an argument that the Sega precedent supports the development of DeCSS, then this should be on rock solid ground. I posted some excerpts from the relevant Sentate Legislative history here: http://eon.law.harvard.edu/archive/dvd-discuss/msg00898.html Moreover, this case was cited by the 9th Circuit Court of Appeals heavily in their recent (Feb 2000) Sony v. Connectix case: http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=9th&no=99-15852+ Taken together - these seem to say that it is ok to access without permission the functional elements of a program, using tools if needed, for the purpose of using them in an indepentant program. I would apply this as so: during the step where DeCSS bypasses the player key and extracts the title key from the DVD, no access to protected content occurs and the activity is protected, even after 1201(a)(1) becomes affective. __________________________________________________ Do You Yahoo!? Send online invitations with Yahoo! Invites. http://invites.yahoo.com From dvd-discuss-owner@eon.law.harvard.edu Wed Apr 26 21:04:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA28048 for dvd-discuss-outgoing; Wed, 26 Apr 2000 21:04:38 -0400 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 VAA28045 for ; Wed, 26 Apr 2000 21:04:37 -0400 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 VAA26872 for ; Wed, 26 Apr 2000 21:04:56 -0400 (EDT) Message-Id: <4.2.2.20000426165429.00d4baa0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 26 Apr 2000 21:04:53 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <20000426194204.12973.qmail@web509.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 Sega and Sony v. Connectix validated as fair use complete copying of a copyrighted work to gain access to the non-copyrightable functional parts. While these decisions were both before the DMCA made "access control" a right of the copyright holder, they both have strong statements that access to functional components trumps copyright infringement. We should try to use these in two places -- on the reverse engineering exception of 1201(f), where, as Bryan points out, they are mentioned in the legislative record, and on the ground that 1201's "access control" right is overbroad because it cuts off previously recognized fair uses. Accolade reverse engineered the console and game firmware to develop compatible games. Connectix reverse engineered the console to develop replacement consoles. Is there a plausible argument that DeCSS reverse engineers the DVD player, not primarily the "access control measures" of the DVD? After all, it does seek to replace the player, which was recognized as legitimate in Connectix. --Wendy At 12:42 PM 4/26/00 -0700, bryan_w_taylor@yahoo.com wrote: >--- Fire Drake wrote: > > Has anyone wondered if the old 9th Ciruit ruling that other companys > > could decompile Sega Genesis sofware so other companys could write > > SW for Genesis applys here? Or has this been brough up b4? > >The Senate Legislative history specifically named this case as a >motivating factor for 1201(f). The exact cite is Sega Enterprises Ltd. >v Accolade, Inc., 977 F.2d 1510(9th Cir. 1992.) >http://caselaw.findlaw.com/cgi-bin/getcase.plcourt=9th&f=2&invol=1510&vol=9 >77&exact=1 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 Wed Apr 26 21:12:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA28264 for dvd-discuss-outgoing; Wed, 26 Apr 2000 21:12:15 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA28261 for ; Wed, 26 Apr 2000 21:12:14 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id VAA26740 for ; Wed, 26 Apr 2000 21:12:03 -0400 Date: Wed, 26 Apr 2000 21:12:02 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <4.2.2.20000426165429.00d4baa0@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 Additionally, to address the argument that DeCSS isn't a player in itself, it is an essential part of one. I'm sure Sony would have liked to isolate some essential component of the Connectix emulator, but this would have been a disguised attack on the whole. DeCSS, is a similarly essential module of a whole DVD player, which would be protected. Clearly the protection should extend to the components of the player, or else it's worthless. On Wed, 26 Apr 2000, Wendy Seltzer wrote: > Sega and Sony v. Connectix validated as fair use complete copying of a > copyrighted work to gain access to the non-copyrightable functional > parts. While these decisions were both before the DMCA made "access > control" a right of the copyright holder, they both have strong statements > that access to functional components trumps copyright infringement. > > We should try to use these in two places -- on the reverse engineering > exception of 1201(f), where, as Bryan points out, they are mentioned in the > legislative record, and on the ground that 1201's "access control" right is > overbroad because it cuts off previously recognized fair uses. > > Accolade reverse engineered the console and game firmware to develop > compatible games. Connectix reverse engineered the console to develop > replacement consoles. Is there a plausible argument that DeCSS reverse > engineers the DVD player, not primarily the "access control measures" of > the DVD? After all, it does seek to replace the player, which was > recognized as legitimate in Connectix. > > --Wendy > > > At 12:42 PM 4/26/00 -0700, bryan_w_taylor@yahoo.com wrote: > > >--- Fire Drake wrote: > > > Has anyone wondered if the old 9th Ciruit ruling that other companys > > > could decompile Sega Genesis sofware so other companys could write > > > SW for Genesis applys here? Or has this been brough up b4? > > > >The Senate Legislative history specifically named this case as a > >motivating factor for 1201(f). The exact cite is Sega Enterprises Ltd. > >v Accolade, Inc., 977 F.2d 1510(9th Cir. 1992.) > >http://caselaw.findlaw.com/cgi-bin/getcase.plcourt=9th&f=2&invol=1510&vol=9 > >77&exact=1 > > 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 Apr 27 01:03:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31301 for dvd-discuss-outgoing; Thu, 27 Apr 2000 01:03:35 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA31298 for ; Thu, 27 Apr 2000 01:03:30 -0400 Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id BAA18884 for ; Thu, 27 Apr 2000 01:03:48 -0400 Message-ID: <3907C8FA.D01ED648@mindspring.com> Date: Thu, 27 Apr 2000 00:58:34 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre19-dvd i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Holiday Greetings From Disney References: <20000426160102.11115.qmail@web511.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 > > > Well the internet is many things to many people. I would certainly say > that _some_ aspects of the web are very similar to those of a library - > both provide information access to the public, serve to archive and > preserve literary information, and are important instruments for > research and learning by the public. Yea www.loc.gov for that matter. But the Internet is more than that certainly. It also contains an indescriminant transmission of digital data for profit part. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 01:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31895 for dvd-discuss-outgoing; Thu, 27 Apr 2000 01:28:14 -0400 Received: from web221.mail.yahoo.com (web221.mail.yahoo.com [128.11.68.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA31892 for ; Thu, 27 Apr 2000 01:28:13 -0400 Message-ID: <20000427052829.5250.rocketmail@web221.mail.yahoo.com> Received: from [64.24.64.35] by web221.mail.yahoo.com; Wed, 26 Apr 2000 22:28:29 PDT Date: Wed, 26 Apr 2000 22:28:29 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] Holiday Greetings From Disney 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 > > Well the internet is many things to many people. I > would certainly say > > that _some_ aspects of the web are very similar to > those of a library - > > both provide information access to the public, > serve to archive and > > preserve literary information, and are important > instruments for > > research and learning by the public. > > Yea www.loc.gov for that matter. But the Internet > is more > than that certainly. It also contains an > indescriminant > transmission of digital data for profit part. The Internet is 'A matrix of networks that connects computers around the world.' and nothing more than that __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 01:40:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32223 for dvd-discuss-outgoing; Thu, 27 Apr 2000 01:40:38 -0400 Received: from web204.mail.yahoo.com (web204.mail.yahoo.com [128.11.68.104]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA32220 for ; Thu, 27 Apr 2000 01:40:36 -0400 Received: (qmail 9334 invoked by uid 60001); 27 Apr 2000 05:40:53 -0000 Message-ID: <20000427054053.9333.qmail@web204.mail.yahoo.com> Received: from [64.24.64.35] by web204.mail.yahoo.com; Wed, 26 Apr 2000 22:40:53 PDT Date: Wed, 26 Apr 2000 22:40:53 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] Holiday Greetings From Disney 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 And since we are on the subject: The public library(the one in real life) contains catalogs and books that have references to many companies. Therefore, If I so desire, I may use my cell phone, while standing or sitting in the library, and phone the company found in a magazine, book or other reference I may then, upon reaching the company, by my cell phone, order whatever I so desire that they offer, using my credit card, pay by phone check, promise of payment or whatever payment method they use. Since we are on the subject... (btw There are lots of stacks found on the WWW... too:)) __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 03:54:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA01099 for dvd-discuss-outgoing; Thu, 27 Apr 2000 03:54:36 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA01096 for ; Thu, 27 Apr 2000 03:54:35 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12kj8R-00046p-00; Thu, 27 Apr 2000 00:54:55 -0700 Date: Thu, 27 Apr 2000 00:54:55 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Antitrust issues in intellectual property Message-ID: <20000427005455.B13889@zork.net> 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 Anybody want to wade through http://www.usdoj.gov/atr/public/guidelines/ipguide.htm and look for interesting stuff? I happened to notice that this evening. -- 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 Apr 27 15:46:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA29120 for dvd-discuss-outgoing; Thu, 27 Apr 2000 15:46:33 -0400 Received: from localhost (wseltzer@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA29117 for ; Thu, 27 Apr 2000 15:46:32 -0400 Date: Thu, 27 Apr 2000 15:46:32 -0400 (EDT) From: Wendy Seltzer To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question 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 >From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 01:23:00 2000 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA31828 for ; Thu, 27 Apr 2000 01:22:59 -0400 Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id BAA19002 for ; Thu, 27 Apr 2000 01:23:18 -0400 Sender: jeffw@ivc.com Message-ID: <3907CD8C.4D36C68C@mindspring.com> Date: Thu, 27 Apr 2000 01:18:04 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre19-dvd i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Joshua Stratton wrote: > Additionally, to address the argument that DeCSS isn't a player in itself, > it is an essential part of one. Which one? I think it is our job is to prove that either DeCSS derived source code must be part of any linux player; not just assume it must be because it could possibly be or prove that because it might possibly be then it must be allowed. Currently there is no player that uses DeCSS (.exe) and it is doubtful there ever will be. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:08:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA00375 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:08:46 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA00372 for ; Thu, 27 Apr 2000 16:08:44 -0400 Received: (qmail 22653 invoked by uid 502); 27 Apr 2000 20:11:14 -0000 Date: Thu, 27 Apr 2000 16:11:14 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427161114.V27466@linuxpower.org> References: <4.2.2.20000426165429.00d4baa0@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: ; from Joshua Stratton on Wed, Apr 26, 2000 at 09:12:02PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Apr 26, 2000 at 09:12:02PM -0400, Joshua Stratton wrote: > Additionally, to address the argument that DeCSS isn't a player in itself, > it is an essential part of one. I'm sure Sony would have liked to isolate > some essential component of the Connectix emulator, but this would have > been a disguised attack on the whole. DeCSS, is a similarly essential > module of a whole DVD player, which would be protected. Clearly the > protection should extend to the components of the player, or else it's > worthless. "DeCSS" - the program written by Johansen and MORE - is not part of any DVD player. This is a myth. According to players involved, working CSS authorization source code was given to Derek Fawcus of LiViD by MORE. LiViD had already been working on cracking CSS for months. Derek then produced CSS authorization code that may or may not have been directly descended from this given code, for inclusion in the LiViD player. The MORE guys took this code and implemented it in DeCSS 1.2. So as far as the "DeCSS is part of a player" argument is concerned, it's a lot more complicated than that. Whether the LiViD and DeCSS have shared code depends on which version of DeCSS you're talking about. At any rate, DeCSS itself is a standalone application and not part of a player. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:21:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01511 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:21:54 -0400 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 QAA01508 for ; Thu, 27 Apr 2000 16:21:53 -0400 Received: from 25915 (170.3.252.64.snet.net [64.252.3.170]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id QAA10228 for ; Thu, 27 Apr 2000 16:22:13 -0400 (EDT) Message-ID: <001b01bfb086$3a60ec80$d559fea9@25915> From: "Ernest Miller" To: References: Subject: Re: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 16:21:53 -0400 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: Wendy Seltzer To: Sent: Thursday, April 27, 2000 3:46 PM Subject: Re: [dvd-discuss] Sega Question > > I think it is our job is to prove that either DeCSS derived > source code must be part of any linux player; not just > assume it must be because it could possibly be or prove > that because it might possibly be then it must be allowed. > > Currently there is no player that uses DeCSS (.exe) and > it is doubtful there ever will be. > I disagree. I think that we should argue that DeCSS is part of an open source development project and that, as such, it plays an important role in reverse engineering even if no DeCSS source code is subsequently used. In open source, one puts out code because even if it isn't directly useful, it might inspire someone to do something useful. We wouldn't want to set out a precedent that code may be suppressed because it is not immediately useful. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:36:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02681 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:36:17 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA02678 for ; Thu, 27 Apr 2000 16:36:16 -0400 Received: (qmail 23340 invoked by uid 502); 27 Apr 2000 20:38:50 -0000 Date: Thu, 27 Apr 2000 16:38:50 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427163850.W27466@linuxpower.org> References: <001b01bfb086$3a60ec80$d559fea9@25915> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <001b01bfb086$3a60ec80$d559fea9@25915>; from Ernest Miller on Thu, Apr 27, 2000 at 04:21:53PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 04:21:53PM -0400, Ernest Miller wrote: > ---- Original Message ----- > From: Wendy Seltzer > To: > Sent: Thursday, April 27, 2000 3:46 PM > Subject: Re: [dvd-discuss] Sega Question > > > > I think it is our job is to prove that either DeCSS derived > > source code must be part of any linux player; not just > > assume it must be because it could possibly be or prove > > that because it might possibly be then it must be allowed. > > > > Currently there is no player that uses DeCSS (.exe) and > > it is doubtful there ever will be. > > > > I disagree. I think that we should argue that DeCSS is part of an > open source development project and that, as such, it plays an > important role in reverse engineering even if no DeCSS source code is > subsequently used. In open source, one puts out code because even if > it isn't directly useful, it might inspire someone to do something > useful. We wouldn't want to set out a precedent that code may be > suppressed because it is not immediately useful. Which open source project do you believe DeCSS is a part of? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:44:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03335 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:44:04 -0400 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 QAA03291 for ; Thu, 27 Apr 2000 16:43:58 -0400 Received: from 25915 (170.3.252.64.snet.net [64.252.3.170]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id QAA21482 for ; Thu, 27 Apr 2000 16:44:18 -0400 (EDT) Message-ID: <002f01bfb089$4ee98c40$d559fea9@25915> From: "Ernest Miller" To: References: <001b01bfb086$3a60ec80$d559fea9@25915> <20000427163850.W27466@linuxpower.org> Subject: Re: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 16:43:56 -0400 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: Thursday, April 27, 2000 4:38 PM Subject: Re: [dvd-discuss] Sega Question > > I disagree. I think that we should argue that DeCSS is part of an > > open source development project and that, as such, it plays an > > important role in reverse engineering even if no DeCSS source code is > > subsequently used. In open source, one puts out code because even if > > it isn't directly useful, it might inspire someone to do something > > useful. We wouldn't want to set out a precedent that code may be > > suppressed because it is not immediately useful. > > Which open source project do you believe DeCSS is a part of? Open source is decentralized, so that is ambiguous. > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:45:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03508 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:45:33 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03505 for ; Thu, 27 Apr 2000 16:45:31 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id QAA30854 for ; Thu, 27 Apr 2000 16:45:20 -0400 Date: Thu, 27 Apr 2000 16:45:20 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question 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 Then it would be the latter. Of course, depending on how you look at things, DeCSS is usable as a component of a DVD player even if not part of a monolithic player application. AFAIK (I don't have the sw/hw to test this out myself) it's possible to read a DVD, use DeCSS to save a decrypted copy of the DVD contents into memory, and then display them with an mpeg2 player. In linux this could be done with a shell script. Obviously the parts of the player have little to do with each other, but a sa whole they can be treated as a black box which will, eventually play the movie. The philosophy of piping inputs and outputs between many small programs is of course very common in the Unix community. And it's not entirely unknown to do similar stuff with other formats. Several years ago on the Mac, before there was an mp3 player the only way to read these files was to convert them to mp2. On the Be, there's a program that reads the digitial music directly off of a CD (as opposed to the normal method of piping the analog output decoded by the CDROM straight to the sound hardware) which lets you play it backwards, get completely digital samples, etc. So while DeCSS is not part of a single player application, it has been used, I'm sure (if only when testing) as a component in the process of playing a DVD. Why would this not be a valid use? Must it all be one single binary? (and if so, how are DVD drivers reconciled with this?) On Thu, 27 Apr 2000, Wendy Seltzer wrote: > Joshua Stratton wrote: > > > Additionally, to address the argument that DeCSS isn't a player in itself, > > it is an essential part of one. > > Which one? > > I think it is our job is to prove that either DeCSS derived > source code must be part of any linux player; not just > assume it must be because it could possibly be or prove > that because it might possibly be then it must be allowed. > > Currently there is no player that uses DeCSS (.exe) and > it is doubtful there ever will be. > > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:53:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04326 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:53:36 -0400 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 QAA04323 for ; Thu, 27 Apr 2000 16:53:33 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCG4HL>; Thu, 27 Apr 2000 13:54:42 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B03@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 13:54:33 -0700 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 We don't need to prove that DeCSS -must- be part of any Linux player. Just that something that does what DeCSS does would be a necessary step in the development of a player. There is -always- more than one way to skin a project, so to try to prove that any one specific piece of software (such as DeCSS) "must" be used to accomplish a task (such as writing a Linux DVD player) would be an excercise in futility. But to show that developent of DeCSS (or something like it!) is a reasonable and necessary step towards the development of a player is all that should be necessary. The fact that there isn't a player that uses the DeCSS code yet is probably directly due to the lawsuits about DeCSS. If those had not happened, we would almost certainly be seeing real products based upon the DeCSS code by now. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Wendy Seltzer [mailto:wseltzer@eon.law.harvard.edu] > Sent: Thursday, April 27, 2000 12:47 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > > >From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 01:23:00 2000 > Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) > by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA31828 > for ; Thu, 27 Apr 2000 > 01:22:59 -0400 > Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) > by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id BAA19002 > for ; Thu, 27 Apr 2000 > 01:23:18 -0400 > Sender: jeffw@ivc.com > Message-ID: <3907CD8C.4D36C68C@mindspring.com> > Date: Thu, 27 Apr 2000 01:18:04 -0400 > From: Jeff Waller > X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre19-dvd i686) > X-Accept-Language: en > MIME-Version: 1.0 > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > References: > > Content-Type: text/plain; charset=us-ascii > Content-Transfer-Encoding: 7bit > > Joshua Stratton wrote: > > > Additionally, to address the argument that DeCSS isn't a > player in itself, > > it is an essential part of one. > > Which one? > > I think it is our job is to prove that either DeCSS derived > source code must be part of any linux player; not just > assume it must be because it could possibly be or prove > that because it might possibly be then it must be allowed. > > Currently there is no player that uses DeCSS (.exe) and > it is doubtful there ever will be. > > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:57:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04670 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:57:36 -0400 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 QAA04667 for ; Thu, 27 Apr 2000 16:57:34 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA28107 for ; Thu, 27 Apr 2000 16:57:54 -0400 (EDT) Date: Thu, 27 Apr 2000 16:57:54 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <20000427163850.W27466@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, 27 Apr 2000 greslin@linuxpower.org wrote: > > Which open source project do you believe DeCSS is a part of? > DeCSS is currently in the cvs tree of a well known Linux DVD project... From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 16:58:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04708 for dvd-discuss-outgoing; Thu, 27 Apr 2000 16:58:00 -0400 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 QAA04704 for ; Thu, 27 Apr 2000 16:57:59 -0400 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 QAA29398 for ; Thu, 27 Apr 2000 16:58:18 -0400 (EDT) Message-Id: <4.2.2.20000427163646.00d369c0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 27 Apr 2000 16:58:06 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <001b01bfb086$3a60ec80$d559fea9@25915> 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 This returns to a thought I had earlier about open source/free software development: That decentralized process seems an ideal context for the "code is speech" argument because the programmers often don't meet and do less speaking with one another than exchanging snips of code. (to be better filled in by people who have done actual work on these projects!) Many of these pieces will not be functional on their own, but may be written primarily to communicate "here's a suggestion on how to do X" or "here's why Y isn't a good solution." So if non-functional components aren't protected reverse engineering, they should instead be protected speech. At 04:21 PM 4/27/00 -0400, ernest.miller@yale.edu wrote: >---- Original Message ----- >From: Wendy Seltzer [misattribution: this message got mangled by the majordomo and I sent it through -Wendy] Really From: Jeff Waller > > I think it is our job is to prove that either DeCSS derived > > source code must be part of any linux player; not just > > assume it must be because it could possibly be or prove > > that because it might possibly be then it must be allowed. > > > > Currently there is no player that uses DeCSS (.exe) and > > it is doubtful there ever will be. > > > >I disagree. I think that we should argue that DeCSS is part of an >open source development project and that, as such, it plays an >important role in reverse engineering even if no DeCSS source code is >subsequently used. In open source, one puts out code because even if >it isn't directly useful, it might inspire someone to do something >useful. We wouldn't want to set out a precedent that code may be >suppressed because it is not immediately useful. Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:10:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA06064 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:10:56 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA06061 for ; Thu, 27 Apr 2000 17:10:53 -0400 Received: (qmail 24325 invoked by uid 502); 27 Apr 2000 21:13:27 -0000 Date: Thu, 27 Apr 2000 17:13:27 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427171327.Y27466@linuxpower.org> References: <20000427163850.W27466@linuxpower.org> 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 Thu, Apr 27, 2000 at 04:57:54PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 04:57:54PM -0400, Jeremy A Erwin wrote: > On Thu, 27 Apr 2000 greslin@linuxpower.org wrote: > > > > Which open source project do you believe DeCSS is a part of? > > > > DeCSS is currently in the cvs tree of a well known Linux DVD > project... But it's not distributed as part of the LiViD package or is listed as one of it's modules. It is also not actively being developed as part of the LiViD project, nor has it ever been to the best of my knowledge. I will admit, though, I'm curious why they contain it in their CVS. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:17:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07087 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:17:00 -0400 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 RAA07084 for ; Thu, 27 Apr 2000 17:16:57 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA28337 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Apr 2000 16:17:16 -0500 Date: Thu, 27 Apr 2000 16:17:16 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427161716.A28289@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000426165429.00d4baa0@law.harvard.edu> <20000427161114.V27466@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000427161114.V27466@linuxpower.org>; from greslin@linuxpower.org on Thu, Apr 27, 2000 at 04:11:14PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 04:11:14PM -0400, greslin@linuxpower.org wrote: > On Wed, Apr 26, 2000 at 09:12:02PM -0400, Joshua Stratton wrote: > > Additionally, to address the argument that DeCSS isn't a player in itself, > > it is an essential part of one. > > "DeCSS" - the program written by Johansen and MORE - is not part of any > DVD player. This is a myth. The way I think of it is: Writing a program like DeCSS is an essential step in writing a player. But that doesn't make DeCSS a *part of* a player. Free software authors have important reasons for sharing every tiny piece of halfway-complete code with the public. So to us it seems obvious that you'd share something like DeCSS: it demonstrates important concepts to other developers. End-user usefulness isn't terribly important. But most folks will find that hard to understand: they'll say "Fine, so it was a necessary step. So go write your player and quit distributing DeCSS." At this point free software developers stand and fight because they want the freedom to release anything at any time. I'd bet that a lot of licensed player authors wrote CSS-decoding programs as a part of their player development. They just never distributed them. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:31:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09251 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:31:02 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA09248 for ; Thu, 27 Apr 2000 17:31:00 -0400 Received: (qmail 24864 invoked by uid 502); 27 Apr 2000 21:33:34 -0000 Date: Thu, 27 Apr 2000 17:33:34 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427173334.Z27466@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1B03@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1B03@mail2.onetouch.com>; from Richard Hartman on Thu, Apr 27, 2000 at 01:54:33PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 01:54:33PM -0700, Richard Hartman wrote: > We don't need to prove that DeCSS -must- be part of > any Linux player. Just that something that does > what DeCSS does would be a necessary step in the > development of a player. There is -always- more > than one way to skin a project, so to try to prove > that any one specific piece of software (such as > DeCSS) "must" be used to accomplish a task (such > as writing a Linux DVD player) would be an excercise > in futility. > > But to show that developent of DeCSS (or something > like it!) is a reasonable and necessary step towards > the development of a player is all that should be > necessary. The weakness of the "proof of concept" argument is that, if I recall correctly, DeCSS was being distributed as a binary for some time before it was generally available in source code form. That's *sure* to come out in trial; it gives the impression that knowing how it worked was less important than being able to use it. Once again, if memory serves - the initial wide release of the DeCSS source code was accidental; Johansen inadvertantly put it up on his site and folks found it. At that point, though, the DeCSS executable had already been in distribution. If DeCSS were written as a "necessary step" towards the building of a Linux DVD player, logic would indicate that a source code release would have come first. Especially in light of the argument that DeCSS was part of an OS project and that the source code was so fired-up important. How would you answer this issue in court? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:35:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09855 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:35:01 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA09781 for ; Thu, 27 Apr 2000 17:34:59 -0400 Received: (qmail 24970 invoked by uid 502); 27 Apr 2000 21:37:30 -0000 Date: Thu, 27 Apr 2000 17:37:30 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427173730.A27466@linuxpower.org> References: <001b01bfb086$3a60ec80$d559fea9@25915> <20000427163850.W27466@linuxpower.org> <002f01bfb089$4ee98c40$d559fea9@25915> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <002f01bfb089$4ee98c40$d559fea9@25915>; from Ernest Miller on Thu, Apr 27, 2000 at 04:43:56PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 04:43:56PM -0400, Ernest Miller wrote: > > ----- Original Message ----- > From: > To: > Sent: Thursday, April 27, 2000 4:38 PM > Subject: Re: [dvd-discuss] Sega Question > > > > > I disagree. I think that we should argue that DeCSS is part of an > > > open source development project and that, as such, it plays an > > > important role in reverse engineering even if no DeCSS source code > is > > > subsequently used. In open source, one puts out code because even > if > > > it isn't directly useful, it might inspire someone to do something > > > useful. We wouldn't want to set out a precedent that code may be > > > suppressed because it is not immediately useful. > > > > Which open source project do you believe DeCSS is a part of? > > Open source is decentralized, so that is ambiguous. This is really thin ice. It makes it appear as though we're asking for special legal provisions for GPL software. No court would buy it; that essentially says that as long as a program is distributed under an OS license - or possibly public domain - then the rest of the laws don't matter. Or more to the point - it says that legal limitations on software only apply to proprietary software. Is this the direction you want to take this? -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:38:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10194 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:38:59 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA10191 for ; Thu, 27 Apr 2000 17:38:58 -0400 Message-ID: <20000427213848.11203.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 27 Apr 2000 14:38:48 PDT Date: Thu, 27 Apr 2000 14:38:48 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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 --- Ernest Miller wrote: > I disagree. I think that we should argue that DeCSS is part of an > open source development project and that, as such, it plays an > important role in reverse engineering even if no DeCSS source code is > subsequently used. In open source, one puts out code because even if > it isn't directly useful, it might inspire someone to do something > useful. We wouldn't want to set out a precedent that code may be > suppressed because it is not immediately useful. I kind of agree with this. DeCSS seems most like a proof of concept tool that was just one step formward in a rapidly evolving development effort. The ideas demonstrated by the original DeCSS are at work in LiViD - in fact, as Rob pointed out, Fawcus expressed them in better programming which was then incorporated back into the updated DeCSS, so there is a DeCSS => LiViD => DeCSS idea exchange that took place. In my mind LiViD is clearly a reverse engineering effort 'solely for the purpose' of interoperability. DeCSS traded code with LiViD and thus joined the critical path of LiViD. Since Fawcus's recoding of the original DeCSS was used for the DeCSS upgrade, including the critical parts - I think it is correct to say that the embattled functionality of DeCSS is part of LiViD.DeCSS.exe as a whole isn't part of LiViD - but the parts that aren't common to both are not at issue in the case. Since they essentially share some code, DeCSS and LiViD are at worst 'blood relatives'. The thing that bugs me is that people view DeCSS as a final product - I don't think it really is - it was a tool being traded in the middle of a development effort because it illustrated ideas via working code. I don't know anybody who actually uses it for any other reason than protest. Why would they when it's ideas have been incorporated into a much more comprehensive solution? __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:54:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11546 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:54:22 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA11543 for ; Thu, 27 Apr 2000 17:54:21 -0400 Message-ID: <20000427215409.16551.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 27 Apr 2000 14:54:09 PDT Date: Thu, 27 Apr 2000 14:54:09 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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: > Writing a program like DeCSS is an essential step in writing a > player. > > But that doesn't make DeCSS a *part of* a player. Exactly, and I see not reason to assume it must be *part of* the final product to be protected. The exact standard under 1201(f)(2) is that it must be "for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability" I think DeCSS undeniably did do some "enabling" and was needed "to achieve" interoperability within the LiViD project, although as it did so, it happened not to get incorporated in whole into the final product. However it's essential ideas - it's algorithm - is now part of LiViD and this above all else is the primary contribution of DeCSS to the world, unless you count being a poster child for prolitical protest. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 17:56:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11716 for dvd-discuss-outgoing; Thu, 27 Apr 2000 17:56:11 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11712 for ; Thu, 27 Apr 2000 17:56:09 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12kwGs-0005cY-00; Thu, 27 Apr 2000 14:56:30 -0700 Date: Thu, 27 Apr 2000 14:56:30 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427145630.K13889@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000427213848.11203.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000427213848.11203.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Apr 27, 2000 at 02:38:48PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Ernest Miller wrote: > > > I disagree. I think that we should argue that DeCSS is part of an > > open source development project and that, as such, it plays an > > important role in reverse engineering even if no DeCSS source code is > > subsequently used. In open source, one puts out code because even if > > it isn't directly useful, it might inspire someone to do something > > useful. We wouldn't want to set out a precedent that code may be > > suppressed because it is not immediately useful. > > I kind of agree with this. DeCSS seems most like a proof of concept > tool that was just one step formward in a rapidly evolving development > effort. The ideas demonstrated by the original DeCSS are at work in > LiViD - in fact, as Rob pointed out, Fawcus expressed them in better > programming which was then incorporated back into the updated DeCSS, so > there is a DeCSS => LiViD => DeCSS idea exchange that took place. > > In my mind LiViD is clearly a reverse engineering effort 'solely for > the purpose' of interoperability. DeCSS traded code with LiViD and thus > joined the critical path of LiViD. [...] > Since they essentially share some code, DeCSS and LiViD are at worst > 'blood relatives'. I like the "blood relatives" idea, but remember that sharing code does not always mean that projects share goals or values. Intent seems very important in the law. It would be easy for someone to write some program that shared code with another project but was strongly disapproved of by the authors or maintainers of the other project. Or they could be completely independent and irrelevant to each other. One of the consequences of open source licensing is that a "blood relation" in code doesn't necessarily have to do with a "blood relation" in projects themselves. -- 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 Apr 27 18:05:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13115 for dvd-discuss-outgoing; Thu, 27 Apr 2000 18:05:54 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA13112 for ; Thu, 27 Apr 2000 18:05:53 -0400 Received: from mindspring.com (firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id SAA27863 for ; Thu, 27 Apr 2000 18:06:14 -0400 Message-ID: <3908B89B.596FC954@mindspring.com> Date: Thu, 27 Apr 2000 18:00:59 -0400 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] Sega Question References: <20000427213848.11203.qmail@web515.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 > > The thing that bugs me is that people view DeCSS as a final product - I > don't think it really is - it was a tool being traded in the middle of > a development effort because it illustrated ideas via working code. I > don't know anybody who actually uses it for any other reason than > protest. Why would they when it's ideas have been incorporated into a > much more comprehensive solution? Possible Plaintiff Response?: Your honor, by defendant's own admition DeCSS the executable is not likely to be used for any other purpose now than circumvention. Moreover, DeCSS derived source code has long since been incorporated in other programs to which we at this time do not object. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 18:40:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16520 for dvd-discuss-outgoing; Thu, 27 Apr 2000 18:40:19 -0400 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 SAA16517 for ; Thu, 27 Apr 2000 18:40:18 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCG4MR>; Thu, 27 Apr 2000 15:41:26 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B04@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 15:41:17 -0700 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: greslin@linuxpower.org [mailto:greslin@linuxpower.org] > Sent: Thursday, April 27, 2000 2:34 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > > On Thu, Apr 27, 2000 at 01:54:33PM -0700, Richard Hartman wrote: > > We don't need to prove that DeCSS -must- be part of > > any Linux player. Just that something that does > > what DeCSS does would be a necessary step in the > > development of a player. There is -always- more > > than one way to skin a project, so to try to prove > > that any one specific piece of software (such as > > DeCSS) "must" be used to accomplish a task (such > > as writing a Linux DVD player) would be an excercise > > in futility. > > > > But to show that developent of DeCSS (or something > > like it!) is a reasonable and necessary step towards > > the development of a player is all that should be > > necessary. > > The weakness of the "proof of concept" argument is that, > if I recall correctly, DeCSS was being distributed as a binary > for some time before it was generally available in source code > form. That's *sure* to come out in trial; it gives the impression > that knowing how it worked was less important than being able > to use it. > > Once again, if memory serves - the initial wide release of the > DeCSS source code was accidental; Johansen inadvertantly put it > up on his site and folks found it. At that point, though, the > DeCSS executable had already been in distribution. > > If DeCSS were written as a "necessary step" towards the building of > a Linux DVD player, logic would indicate that a source code release > would have come first. Especially in light of the argument that > DeCSS was part of an OS project and that the source code was so > fired-up important. > > How would you answer this issue in court? > You answered it yourself. If the initial release of DeCSS sources was accidental, perhaps Johansen would have eventually released the full player ... which would have had to incorporate the code that was developed in the "proof of concept" app DeCSS. Many people don't release their intermediate steps ... but if it got released by accident, well that shouldn't be any different than the release of the final product from a legal standpoint. If the code is legit it's legit. If it's not then the DVD player would be illegal. But we've determined that RE to create interoperating software is legit. The fact that DeCSS is not in and of itself a player does not negate the fact that a player requires code that does what DeCSS does -- which means that DeCSS (or something like it) would -have- to be developed as part of any development project aiming at a DVD player as it's end result. This legitimizes the DeCSS piece. As for distribution in binary -- have you ever heard of a process called "beta testing"? If he wanted to find bugs in his decoder, the best way is to get a bunch of people to use it on DVDs all over and report any failures. Whether he released the source at that time or not is his own issue. -- -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 Apr 27 19:13:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20348 for dvd-discuss-outgoing; Thu, 27 Apr 2000 19:13:20 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20344 for ; Thu, 27 Apr 2000 19:13:18 -0400 Received: from mindspring.com (firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id TAA28416 for ; Thu, 27 Apr 2000 19:13:40 -0400 Message-ID: <3908C868.7148E273@mindspring.com> Date: Thu, 27 Apr 2000 19:08:24 -0400 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: Open source process (was Re: [dvd-discuss] Sega Question) References: <5A8391CA2D9ED311AFAA080009D982B10B1B04@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 Ok then to summarize. 1) We claim that open source development (even involving reverse engineering) is a legitimate process. 2) Widely distributed incremental revisions of source code and incremental incorporation of new source code is an aspect of open source development. 3) Free standing programs like DeCSS, though perhaps not intended to be included in the final product naturally arize from 2), but nevertheless (and importantly) are an integral component of open source development as they fulfill the purposes of beta testing and proof of concept. Er, what was the URL of the open source FAQ again? -Jeff From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 19:37:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22745 for dvd-discuss-outgoing; Thu, 27 Apr 2000 19:37:36 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA22742 for ; Thu, 27 Apr 2000 19:37:34 -0400 Received: (qmail 28208 invoked by uid 502); 27 Apr 2000 23:40:02 -0000 Date: Thu, 27 Apr 2000 19:40:02 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427194002.B27466@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1B04@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1B04@mail2.onetouch.com>; from Richard Hartman on Thu, Apr 27, 2000 at 03:41:17PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 03:41:17PM -0700, Richard Hartman wrote: > > > [ Rob said ] > > > > If DeCSS were written as a "necessary step" towards the building of > > a Linux DVD player, logic would indicate that a source code release > > would have come first. Especially in light of the argument that > > DeCSS was part of an OS project and that the source code was so > > fired-up important. > > > > How would you answer this issue in court? > > > > You answered it yourself. If the initial release of DeCSS sources > was accidental, perhaps Johansen would have eventually released > the full player ... Then again, maybe he would have eventually printed it, stapled it to a cat and took it on tour as modern art. There's no evidence whatsoever, AFAIK, that Johansen or MORE had any interest in writing a full DVD player. Plaintiff argument: "The MORE authors only released source code as an afterthought; the obvious intended form of DeCSS was as a binary. There are several websites that explain in detail how to use this program to copy a DVD to the Video CD format. There is no evidence whatsoever that the authors of DeCSS intended it to be a part of a later DVD player project. It is clear that the intended purpose of this program is to simplify the copying of DVD media." Plaintiff has evidence; defense doesn't. Plaintiff wins. > which would have had to incorporate the code > that was developed in the "proof of concept" app DeCSS. Many people > don't release their intermediate steps ... but if it got released > by accident, well that shouldn't be any different than the release > of the final product from a legal standpoint. If the code is legit > it's legit. If it's not then the DVD player would be illegal. But > we've determined that RE to create interoperating software is legit. We have? I wasn't aware that anyone on this list has settled this in court. I know what the law says.. but you're generalizing a passage in 17 USC 1201 that has lots of potential holes. Example: "creating interoperating software" ain't exactly right. There's this whole "programs with other programs" bit; that assumes that a court will accept that DVD media is a program. The "RE for interoperating is legit!" thing isn't quite an axiom yet. > The fact that DeCSS is not in and of itself a player does not > negate the fact that a player requires code that does what > DeCSS does -- which means that DeCSS (or something like it) > would -have- to be developed as part of any development project > aiming at a DVD player as it's end result. This legitimizes > the DeCSS piece. You make it sound like the LiViD player has already been found to be "non-circumventing". This hasn't been determined in court; just because they've only said "DeCSS" doesn't mean that they're only interested in Johansen's program. >From what I understand, the plaintiffs are trying to revise the original injunctions to include *all* non-licensed CSS-emulating code under the term "DeCSS". More than likely, by the time all this hits the courtroom "DeCSS" will cover DeCSS, DoD and LiViD. There's no reason for the court to deny the request, in light of the technical facts. It would actually make less sense to say that DeCSS is bad but DoD isn't. > As for distribution in binary -- have you ever heard of a > process called "beta testing"? Of course I have. And I don't believe there is any evidence that Johansen and Friends intended DeCSS 1.0-1.2 to be beta releases. Evidence is sort of important. > If he wanted to find bugs > in his decoder, the best way is to get a bunch of people > to use it on DVDs all over and report any failures. Whether > he released the source at that time or not is his own issue. Well, it's sort of relevant if you want to claim that it had anything to do with LiViD. Typically you don't beta an OS project by shipping out a sourceless binary. The problem with your argument is that you're building it on hypotheticals rather than evidence. This was one of the mistakes the EFF lawyers made in New York back in January. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:00:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24713 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:00:14 -0400 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 UAA24709 for ; Thu, 27 Apr 2000 20:00:13 -0400 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA24498 for ; Thu, 27 Apr 2000 19:00:05 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 18:59:31 -0500 Message-ID: <000301bfb0a4$a0eee880$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: <20000427173334.Z27466@linuxpower.org> 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 Rob wrote: > > On Thu, Apr 27, 2000 at 01:54:33PM -0700, Richard Hartman wrote: > > We don't need to prove that DeCSS -must- be part of > > any Linux player. Just that something that does > > what DeCSS does would be a necessary step in the > > development of a player. There is -always- more > > than one way to skin a project, so to try to prove > > that any one specific piece of software (such as > > DeCSS) "must" be used to accomplish a task (such > > as writing a Linux DVD player) would be an excercise > > in futility. > > > > But to show that developent of DeCSS (or something > > like it!) is a reasonable and necessary step towards > > the development of a player is all that should be > > necessary. > > The weakness of the "proof of concept" argument is that, > if I recall correctly, DeCSS was being distributed as a binary > for some time before it was generally available in source code > form. That's *sure* to come out in trial; it gives the impression > that knowing how it worked was less important than being able > to use it. I'd like to ask: is it indicative of intent in the distribution of DeCSS that there was no source code conspicuously bundled with the distro? We have to remember that the people who frequented 2600 were very familiar with decompilers and disassemblers (even if it is apparent that I am not in my use of both terms? :) ). I'm not saying that your point isn't a point, but asking: should we consider the nature of the recipients of the distribution? Is this legally admissable in argument (Wendy, others)? > > Once again, if memory serves - the initial wide release of the > DeCSS source code was accidental; Johansen inadvertantly put it > up on his site and folks found it. At that point, though, the > DeCSS executable had already been in distribution. > > If DeCSS were written as a "necessary step" towards the building of > a Linux DVD player, logic would indicate that a source code release > would have come first. Especially in light of the argument that > DeCSS was part of an OS project and that the source code was so > fired-up important. Hasn't JJ said that he intended DeCSS as work toward the creation of a DVD player on unsupported platforms? Is this not borne out by the fact that he gave the code to a project trying to do exactly that? I think that the view here of "necessary step" is too narrow; you mean that "necessary" means "necessary for a specific project" while in fact there is ample reason to create this tool separately for *any number* of projects. Also, to the extent that a "source code release" was a first step toward the building of a Linux player - isn't that step evident in JJ's giving the code to Derek? (Isn't all this first name stuff and use of initials cute? Aw.) I think you mean that for DeCSS to be used in *any* project, the source of that would have to be first publicly released. Was it never? Even if it was never, in the context of an RE effort (and I'm not referring to a specific one, but to RE in general, for which DeCSS was intended), is the release of source different in meaning from a release of the binary? The binary is meant to be used after all, and if you are distributing source, others will compile it and use the compiled exe (or whatever it is after it's compiled). A fact which may be important: what license notice was attached to DeCSS the exe? Was there notice that it was GPL'd, or licensed in other ways? If it was, downloaders would have known that they were permitted to extract the source from the binary. sparky > > How would you answer this issue in court? > > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:00:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24719 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:00:15 -0400 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 UAA24708 for ; Thu, 27 Apr 2000 20:00:13 -0400 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id SAA24486 for ; Thu, 27 Apr 2000 18:59:59 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 18:59:25 -0500 Message-ID: <000101bfb0a4$9dec56e0$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: <20000427161114.V27466@linuxpower.org> 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 Rob wrote: > > > > So as far as the "DeCSS is part of a player" argument is concerned, it's > a lot more complicated than that. Whether the LiViD and DeCSS have > shared code depends on which version of DeCSS you're talking about. At > any rate, DeCSS itself is a standalone application and not part of a > player. As far as relation to player goes, I think we'd be concerned with whatever copy was up on 2600 when the fit hit the shan. > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:00:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24725 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:00:20 -0400 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 UAA24710 for ; Thu, 27 Apr 2000 20:00:13 -0400 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA24493 for ; Thu, 27 Apr 2000 19:00:02 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 18:59:28 -0500 Message-ID: <000201bfb0a4$9f7f2be0$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: <20000427173730.A27466@linuxpower.org> 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 Rob wrote: > > On Thu, Apr 27, 2000 at 04:43:56PM -0400, Ernest Miller wrote: > > > > ----- Original Message ----- > > From: > > To: > > Sent: Thursday, April 27, 2000 4:38 PM > > Subject: Re: [dvd-discuss] Sega Question > > > > > > Open source is decentralized, so that is ambiguous. > > This is really thin ice. It makes it appear as though we're asking for > special legal provisions for GPL software. No court would buy it; that > essentially says that as long as a program is distributed under an OS > license - or possibly public domain - then the rest of the laws don't > matter. > > Or more to the point - it says that legal limitations on software only > apply to proprietary software. Is this the direction you want to > take this? Actually, to the extent that we're talking "legal applies to proprietary" there's NO leg to stand on in excepting open source. Even GPL open source uses "copyleft" - a means of making sure that when you distribute a product, you distribute your creator's rights along with it - which a creator can secure only if the product is *copyrighted*, i.e. essentially proprietary. This debate is starting to get drawn into an I-think-this, I-think-that discussion. Is there any ruling out there in technicolor legal-land that speaks to the distribution situation of DeCSs? We need to get a quote in here somewhere we can base our opinions on. sparky > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:12:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26119 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:12:16 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA26116 for ; Thu, 27 Apr 2000 20:12:14 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id UAA31602 for ; Thu, 27 Apr 2000 20:12:05 -0400 Date: Thu, 27 Apr 2000 20:12:05 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <20000427194002.B27466@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, 27 Apr 2000 greslin@linuxpower.org wrote: > On Thu, Apr 27, 2000 at 03:41:17PM -0700, Richard Hartman wrote: > > > > > [ Rob said ] > > > > > > If DeCSS were written as a "necessary step" towards the building of > > > a Linux DVD player, logic would indicate that a source code release > > > would have come first. Especially in light of the argument that > > > DeCSS was part of an OS project and that the source code was so > > > fired-up important. > > > > > > How would you answer this issue in court? > > > > > > > You answered it yourself. If the initial release of DeCSS sources > > was accidental, perhaps Johansen would have eventually released > > the full player ... > > Then again, maybe he would have eventually printed it, stapled it to a > cat and took it on tour as modern art. There's no evidence whatsoever, > AFAIK, that Johansen or MORE had any interest in writing a full DVD > player. > > Plaintiff argument: "The MORE authors only released source code as an > afterthought; the obvious intended form of DeCSS was as a binary. There > are several websites that explain in detail how to use this program to > copy a DVD to the Video CD format. There is no evidence whatsoever that > the authors of DeCSS intended it to be a part of a later DVD player > project. It is clear that the intended purpose of this program is to > simplify the copying of DVD media." > > Plaintiff has evidence; defense doesn't. Plaintiff wins. Forgive me if there's already been a conclusive answer to this, but is it not possible that transfer of data from DVD to VCD (barring obvious infringements like giving away or selling the VCD) could be considered either: 1) Interoperability Software-only MPEG2 players are AFAIK legal, but they are very demanding on computers. VCDs on the other hand are already quite playable, so should you want to view a DVD with a computer that can't normally manage it, 'downsampling' it to VCD quality would permit this. (of course, I subscribe to the theory of relevant interoperability being between the DVD creation software and the DVD player, with the DVD as a mere transfer mechanism between the two, even if only in one direction) 2) Space shifting Additionally, burning DVDs that will actually play at all is outside of the reach of consumers right now. Just to be able to space shift the data at all (which has been upheld for CDs and MP3s, IIRC) would require moving it to a CD for most people. This would cover viewing a movie that was bought on DVD on a VCD player for a TV set. Copying data to different formats has been protected before. I don't think that it's the same issue as the access control, though it's a prerequisite for the copy to be generally useful. From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:22:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27301 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:22:17 -0400 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 UAA27298 for ; Thu, 27 Apr 2000 20:22:15 -0400 Received: from bugbug (max01-62.suba.com [206.69.121.254]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id TAA25070 for ; Thu, 27 Apr 2000 19:22:26 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Thu, 27 Apr 2000 19:21:52 -0500 Message-ID: <000601bfb0a7$c065fe80$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: <20000427194002.B27466@linuxpower.org> 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 Rob wrote: > > > On Thu, Apr 27, 2000 at 03:41:17PM -0700, Richard Hartman wrote: > > > > > [ Rob said ] > > > > > > If DeCSS were written as a "necessary step" towards the building of > > > a Linux DVD player, logic would indicate that a source code release > > > would have come first. Especially in light of the argument that > > > DeCSS was part of an OS project and that the source code was so > > > fired-up important. > > > > > > How would you answer this issue in court? > > > > > > > You answered it yourself. If the initial release of DeCSS sources > > was accidental, perhaps Johansen would have eventually released > > the full player ... > > Then again, maybe he would have eventually printed it, stapled it to a > cat and took it on tour as modern art. There's no evidence whatsoever, > AFAIK, that Johansen or MORE had any interest in writing a full DVD > player. > > Plaintiff argument: "The MORE authors only released source code as an > afterthought; the obvious intended form of DeCSS was as a binary. There > are several websites that explain in detail how to use this program to > copy a DVD to the Video CD format. There is no evidence whatsoever that > the authors of DeCSS intended it to be a part of a later DVD player > project. It is clear that the intended purpose of this program is to > simplify the copying of DVD media." > > Plaintiff has evidence; defense doesn't. Plaintiff wins. Defense: your honor, the plaintiffs, as usual, are talking like stapled cats masquerading as art. :) There is ample evidence that at least one creator - the only creator we can name - intended DeCSS to be used in the creation of DVD players for computer platforms as yet without support for DVD. Also, importantly, the creator of DeCSS intended to contribute to players of an *open source* nature, not to players of proprietary nature. What is the evidence your honor? Glad you asked. There are firstly statements by the creator Jon Johansen. There are documented exchanges in the LiViD development forum archives that show that Jon Johansen not only intended to carry out this stated purpose, but in fact carried it out by contributing his work to an open source DVD player development project already in progress. There is evidence, further, that this aim did achieve fruition in the code of the LiViD DVD player and in the program "css-auth" which owe their existence and viability to Johansen's work. Your honor, there is ample evidence that this program was *intended* to be part of an RE effort; and that it *has been utilized* to that end, and further, *utilized successfully* to that end. The distribution of DeCSS is covered by 1201(f)(3). The plaintiffs are a booty. Can I have a cookie? Thank you your honor. :) > > > > which would have had to incorporate the code > > that was developed in the "proof of concept" app DeCSS. Many people > > don't release their intermediate steps ... but if it got released > > by accident, well that shouldn't be any different than the release > > of the final product from a legal standpoint. If the code is legit > > it's legit. If it's not then the DVD player would be illegal. But > > we've determined that RE to create interoperating software is legit. > > We have? I wasn't aware that anyone on this list has settled this in > court. I know what the law says.. but you're generalizing a passage > in 17 USC 1201 that has lots of potential holes. Check the interoperability string, Rob, and 1201(f)(1)-(3) again. > > Example: "creating interoperating software" ain't exactly right. There's > this whole "programs with other programs" bit; that assumes that a court > will accept that DVD media is a program. The "RE for interoperating > is legit!" thing isn't quite an axiom yet. DVD doesn't have to be one of the interoperating programs. Neither does whatever is RE'd. The only interoperability that has to exist has to be with an *original* program and another program. That means that interoperability, legally understood, is satisfied between the LiViD player and a DVD-unsupported operating system. If an RE effort is aiming at producing *this* sort of interoperability, that's all we need. The legal def is extremely broad. sparky > > > > The fact that DeCSS is not in and of itself a player does not > > negate the fact that a player requires code that does what > > DeCSS does -- which means that DeCSS (or something like it) > > would -have- to be developed as part of any development project > > aiming at a DVD player as it's end result. This legitimizes > > the DeCSS piece. > > You make it sound like the LiViD player has already been found to be > "non-circumventing". This hasn't been determined in court; just > because they've only said "DeCSS" doesn't mean that they're only > interested in Johansen's program. > > >From what I understand, the plaintiffs are trying to revise the original > injunctions to include *all* non-licensed CSS-emulating code under the > term "DeCSS". > > More than likely, by the time all this hits the courtroom "DeCSS" will > cover DeCSS, DoD and LiViD. There's no reason for the court to deny the > request, in light of the technical facts. It would actually make less > sense to say that DeCSS is bad but DoD isn't. > > > > As for distribution in binary -- have you ever heard of a > > process called "beta testing"? > > Of course I have. And I don't believe there is any evidence that > Johansen and Friends intended DeCSS 1.0-1.2 to be beta releases. > Evidence is sort of important. > > > > If he wanted to find bugs > > in his decoder, the best way is to get a bunch of people > > to use it on DVDs all over and report any failures. Whether > > he released the source at that time or not is his own issue. > > Well, it's sort of relevant if you want to claim that it had > anything to do with LiViD. Typically you don't beta an OS project > by shipping out a sourceless binary. > > The problem with your argument is that you're building it on > hypotheticals rather than evidence. This was one of the mistakes > the EFF lawyers made in New York back in January. > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:37:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28934 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:37:59 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA28931 for ; Thu, 27 Apr 2000 20:37:56 -0400 Received: (qmail 29789 invoked by uid 502); 28 Apr 2000 00:40:27 -0000 Date: Thu, 27 Apr 2000 20:40:27 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427204027.C27466@linuxpower.org> References: <20000427173334.Z27466@linuxpower.org> <000301bfb0a4$a0eee880$fe7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000301bfb0a4$a0eee880$fe7945ce@bugbug.WinNATDomain>; from sparky on Thu, Apr 27, 2000 at 06:59:31PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 06:59:31PM -0500, sparky wrote: > Rob wrote: > > > > If DeCSS were written as a "necessary step" towards the building of > > a Linux DVD player, logic would indicate that a source code release > > would have come first. Especially in light of the argument that > > DeCSS was part of an OS project and that the source code was so > > fired-up important. > > Hasn't JJ said that he intended DeCSS as work toward the creation of a DVD > player on unsupported platforms? Is this not borne out by the fact that he > gave the code to a project trying to do exactly that? Not exactly. Jon said at several points (one of which was in private correspondence with yours truly) that his intent was to bring DVD playability to the unsupported platforms, mainly FreeBSD and Linux. He's never claimed that DeCSS was simply going to be an intermediary step towards writing a DVD player. A thin line, but it's there. AFAIK he never claimed to be writing a DVD player. > I think that the view here of "necessary step" is too narrow; you mean that > "necessary" means "necessary for a specific project" while in fact there is > ample reason to create this tool separately for *any number* of projects. > > Also, to the extent that a "source code release" was a first step toward the > building of a Linux player - isn't that step evident in JJ's giving the code > to Derek? *Maybe*. It would be a lot more solid if the binary hadn't been distributed before this point. The fact that the binary had been released first can easily be used to indicate that LiViD involvement was an afterthought. Compare DeCSS with DoD. They both do basically the same job, built around the Xing key. They both hit the airwaves in binary form around roughly the same time. The difference between the two is that the authors of DeCSS chose *later* to give the code to the LiViD group. Would anyone in this list accept the banning of DoD while allowing DeCSS? Why? One other point.. the public statements made by Jon came after the legal fallout began. This was a major sticking point for me a while ago, because it seemed to me that Jon might have said "oh shit, better hide behind the Linux story". There didn't seem to be any pro-OS or pro-LiViD association before the code was given to Derek. I personally believe his story, after contacting him myself. He sounds completely plausible and his story jibes with Derek's (whom I've also corresponded with). But short of dragging him into a U.S. court (remember that Jon lives in Norway and Derek is a Brit) and putting him under oath, there's no way to counter the argument that he had every motivation to be less than truthful about MORE's intents. Any judge would listen to this argument, drop it entirely as hearsay and rule based on the evidence. And, unfortunately, the evidence trail seems to start at the binary-only release of DeCSS. > (Isn't all this first name stuff and use of initials cute? Aw.) I > think you mean that for DeCSS to be used in *any* project, the source of > that would have to be first publicly released. Was it never? Even if it was > never, in the context of an RE effort (and I'm not referring to a > specific one, but to RE in general, for which DeCSS was intended), is the > release of source different in meaning from a release of the binary? The > binary is meant to be used after all, and if you are distributing source, > others will compile it and use the compiled exe (or whatever it is after > it's compiled). It's important if we're arguing that DeCSS was part of an open source project and innocently was not meant as a ripping tool. It's an indicator of intent. By there being a binary release first, it's harder to claim that the intent was to provide an open source player. What would have made more sense would be a simultaneous release of binary and source. ("this is what we did and this is how we did it") As it stands, it appears that the original intent behind the release of DeCSS was to enable something to be done, but not to explain how. > A fact which may be important: what license notice was attached to DeCSS the > exe? Was there notice that it was GPL'd, or licensed in other ways? If it > was, downloaders would have known that they were permitted to extract the > source from the binary. I'm not sure exactly when DeCSS was GPL'ed. It didn't start that way. It certainly wasn't GPL before the source was released. Also, not to quibble, but you don't really extract source from a binary. You extract a disassembly. Another thin technical line. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 20:39:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29076 for dvd-discuss-outgoing; Thu, 27 Apr 2000 20:39:03 -0400 Received: from web510.mail.yahoo.com (web510.mail.yahoo.com [216.115.104.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA29072 for ; Thu, 27 Apr 2000 20:39:02 -0400 Message-ID: <20000428003852.25621.qmail@web510.mail.yahoo.com> Received: from [24.28.154.65] by web510.mail.yahoo.com; Thu, 27 Apr 2000 17:38:52 PDT Date: Thu, 27 Apr 2000 17:38:52 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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: > There's no evidence whatsoever, AFAIK, that Johansen or MORE had any > interest in writing a full DVD player. There is evidence that Johansen passed his code privately to Derek Fawcus who Johansen knew would use it to advance LiViD and with the idea that it would eventually become public. The only explaination for this is that Johansen wanted LiViD to make progress. Of course, this fact alone doesn't really say what his _primary_ intention was. He has stated it was to bring DVD to Linux and FreeBSD, but this is only weakly trustable. However I don't see any evidence to contradict him. By the way - AFAIK nothing has happened with the Norwegian prosecution of Johansen. He was questioned and released and it appears he has not been charged. > Plaintiff argument: "The MORE authors only released source code as an > afterthought; the obvious intended form of DeCSS was as a binary. Even more difficult to explain is the fact that 2600 doesn't seem to have had any interaction with LiViD that I am aware. They, after all, are the ones who have to explain why THEY were distributing it. Anyone know what they say their reasons were? > There are several websites that explain in detail how to use > this program to copy a DVD to the Video CD format. There is no > evidence whatsoever that the authors of DeCSS intended it to be a > part of a later DVD player project. It is clear that the intended > purpose of this program is to simplify the copying of DVD media." I think it's easy to see that dvd-copy.com was promoting piracy by distributing DeCSS, but they have accepted the permanent injunction. I don't really know what 2600 had on their website, so I can't really speak to their intents. I don't know if they distributed the binary, the source, or both. If 2600 is not one of websites that explicitly promoted piracy using DeCSS, then they have a stronger case - if they are, then they are in for a toughy. > Plaintiff has evidence; defense doesn't. Plaintiff wins. What evidence are you refering to that is relevant to 2600? > From what I understand, the plaintiffs are trying to revise the > original injunctions to include *all* non-licensed CSS-emulating > code under the term "DeCSS". This seems overly broad since it doesn't allow for the legitimate activites allowed under the exceptions to 1201. The law should give an infringer an honest chance to get on the right side of a blurry line, especially when the boundaries of a new law are being explored. > More than likely, by the time all this hits the courtroom "DeCSS" > will cover DeCSS, DoD and LiViD. Maybe, but it would only affect the defendants and could be viewed as a remedy to their previous fouls. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 21:37:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA02823 for dvd-discuss-outgoing; Thu, 27 Apr 2000 21:37:33 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA02819 for ; Thu, 27 Apr 2000 21:37:29 -0400 Received: (qmail 31335 invoked by uid 502); 28 Apr 2000 01:39:50 -0000 Date: Thu, 27 Apr 2000 21:39:50 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427213950.D27466@linuxpower.org> References: <20000428003852.25621.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000428003852.25621.qmail@web510.mail.yahoo.com>; from Bryan Taylor on Thu, Apr 27, 2000 at 05:38:52PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 05:38:52PM -0700, Bryan Taylor wrote: > --- greslin@linuxpower.org wrote: > > > There's no evidence whatsoever, AFAIK, that Johansen or MORE had any > > interest in writing a full DVD player. > > There is evidence that Johansen passed his code privately to Derek > Fawcus who Johansen knew would use it to advance LiViD and with the > idea that it would eventually become public. The only explaination for > this is that Johansen wanted LiViD to make progress. Of course, this > fact alone doesn't really say what his _primary_ intention was. He has > stated it was to bring DVD to Linux and FreeBSD, but this is only > weakly trustable. However I don't see any evidence to contradict him. My point was that MORE didn't seem to be planning on writing a player themselves. There's no question that there were some MORE-LiViD sympathies that resulted in LiViD receiving the code. As I said before, I personally believe Jon. His story and Derek's line up, but not in a rehearsed way; the stories break at all the right places to give them a feel of reality. At this point I don't see any direct evidence either, only indirect; I'm more concerned that there's enough indirect evidence to have the whole question thrown out. The fact that DeCSS is a Windows program is one; the fact that it was initially released in binary form is another. As I said, nothing direct, but just enough to convince Kaplan to throw the question out as irrelevant and rule based on "it breaks our toys". It just seems to me that if this particular argument has any legal relevance in this case, that the burden of proof is on our side to show that DeCSS was undeniably intended as part of an RE effort to support the LiViD effort. I don't think we have that undeniability. > By the way - AFAIK nothing has happened with the Norwegian prosecution > of Johansen. He was questioned and released and it appears he has not > been charged. Last time I checked he was charged with two possible violations of Norwegian law: one involved "breaking a security arrangement" to access data and the other was a violation of Norwegian copyright law, Norwegian Copyright Act sect. 54. Have these charges been dropped? If so, do you have a link to the story? The EFF archives (they're the ones representing him in court) don't show anything more recent than January 25th. http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/ 20000125_bing_johansen_case_summary.html > > Plaintiff argument: "The MORE authors only released source code as an > > afterthought; the obvious intended form of DeCSS was as a binary. > > Even more difficult to explain is the fact that 2600 doesn't seem to > have had any interaction with LiViD that I am aware. They, after all, > are the ones who have to explain why THEY were distributing it. Anyone > know what they say their reasons were? I doubt directly, but it's fairly obvious that it was a form of protest. I don't think 2600 was carrying before the mirroring campaign began, though I'm not sure. That might be worth digging up. > > There are several websites that explain in detail how to use > > this program to copy a DVD to the Video CD format. There is no > > evidence whatsoever that the authors of DeCSS intended it to be a > > part of a later DVD player project. It is clear that the intended > > purpose of this program is to simplify the copying of DVD media." > > I think it's easy to see that dvd-copy.com was promoting piracy by > distributing DeCSS, but they have accepted the permanent injunction. I > don't really know what 2600 had on their website, so I can't really > speak to their intents. I don't know if they distributed the binary, > the source, or both. If 2600 is not one of websites that explicitly > promoted piracy using DeCSS, then they have a stronger case - if they > are, then they are in for a toughy. > > > Plaintiff has evidence; defense doesn't. Plaintiff wins. > > What evidence are you refering to that is relevant to 2600? The evidence I was talking about was evidence that DeCSS is basically a copying tool. The plaintiffs will be able to produce ample evidence that it's being used as such, and indirect evidence that it was designed as such. Regarding 2600.. It can be shown that 2600 saw DeCSS as a DVD copier at the point where they first mirrored the code. On 2600's website, there is a news story from November 12 1999 titled "DVD Encryption Cracked". It contains a fairly even-handed story and local mirrors of css-auth and the DeCSS binary. The news story says this: "As a result they were able to create DeCSS, a free DVD decoder, that not only facilitated the creation of previously unavailable open source DVD players for Linux - also allowed people to copy DVD's." http://www.2600.com/news/1999/1112.html I know.. it's not quite as sexy as saying "Download DeCSS! Copy DVD's!". But it also doesn't say that DeCSS is a DVD player.. it only says that it enabled others to make DVD players; the only other significance attributed to DeCSS by 2600 here is as a DVD copier. It's not as sexy as a page of blink tags screaming out "Download this! It lets you copy DVDs!" but it's still there. > > More than likely, by the time all this hits the courtroom "DeCSS" > > will cover DeCSS, DoD and LiViD. > > Maybe, but it would only affect the defendants and could be viewed as a > remedy to their previous fouls. I think it's *way* broad. If they had their way, "DeCSS" would include Stevenson's paper, the LiViD archives, everything. What they would really like is to give the New York injunction the same scope as the California injunction. New York only applies to DeCSS.. California applies to all things CSS. Luckily the CA case is only a state-level case, being a garden-variety trade secret case. I agree, though, that the defense would only benefit if they won the extension. If not under Kaplan, an appeals court would overturn it as overly broad. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 22:18:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA06279 for dvd-discuss-outgoing; Thu, 27 Apr 2000 22:18:01 -0400 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 WAA06276 for ; Thu, 27 Apr 2000 22:18:00 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id VAA28981 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Apr 2000 21:18:17 -0500 Date: Thu, 27 Apr 2000 21:18:17 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427211817.A28960@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1B03@mail2.onetouch.com> <20000427173334.Z27466@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000427173334.Z27466@linuxpower.org>; from greslin@linuxpower.org on Thu, Apr 27, 2000 at 05:33:34PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 05:33:34PM -0400, greslin@linuxpower.org wrote: > > The weakness of the "proof of concept" argument is that, > if I recall correctly, DeCSS was being distributed as a binary > for some time before it was generally available in source code > form. That's *sure* to come out in trial; it gives the impression > that knowing how it worked was less important than being able > to use it. > If DeCSS were written as a "necessary step" towards the building of > a Linux DVD player, logic would indicate that a source code release > would have come first. Especially in light of the argument that > DeCSS was part of an OS project and that the source code was so > fired-up important. That's an excellent point. The answer is: the purpose of the public release of DeCSS was to help developers to jump past the initial filesystem and scrambling problems and jump to the stage of IFO parsing and VOB playing. For this purpose it matters not at all whether source is included. In fact, I seem to recall a couple of people thinking that a source release might lead to quicker retiring of the player key used. If that were true there's a certain logic behind a binary public release and a secret source release to other folks working on the CSS problem. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 22:49:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08630 for dvd-discuss-outgoing; Thu, 27 Apr 2000 22:49:08 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA08627 for ; Thu, 27 Apr 2000 22:49:04 -0400 Received: (qmail 741 invoked by uid 502); 28 Apr 2000 02:51:32 -0000 Date: Thu, 27 Apr 2000 22:51:32 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427225132.E27466@linuxpower.org> References: <20000427194002.B27466@linuxpower.org> <000601bfb0a7$c065fe80$fe7945ce@bugbug.WinNATDomain> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <000601bfb0a7$c065fe80$fe7945ce@bugbug.WinNATDomain>; from sparky on Thu, Apr 27, 2000 at 07:21:52PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 07:21:52PM -0500, sparky wrote: > Rob wrote: > > > > Then again, maybe he would have eventually printed it, stapled it to a > > cat and took it on tour as modern art. There's no evidence whatsoever, > > AFAIK, that Johansen or MORE had any interest in writing a full DVD > > player. > > > > Plaintiff argument: "The MORE authors only released source code as an > > afterthought; the obvious intended form of DeCSS was as a binary. There > > are several websites that explain in detail how to use this program to > > copy a DVD to the Video CD format. There is no evidence whatsoever that > > the authors of DeCSS intended it to be a part of a later DVD player > > project. It is clear that the intended purpose of this program is to > > simplify the copying of DVD media." > > > > Plaintiff has evidence; defense doesn't. Plaintiff wins. > > Defense: > your honor, the plaintiffs, as usual, are talking like stapled cats > masquerading as art. :) There is ample evidence that at least one creator - > the only creator we can name - intended DeCSS to be used in the creation of > DVD players for computer platforms as yet without support for DVD. Also, > importantly, the creator of DeCSS intended to contribute to players of an > *open source* nature, not to players of proprietary nature. > > What is the evidence your honor? Glad you asked. There are firstly > statements by the creator Jon Johansen. There are documented exchanges in > the LiViD development forum archives that show that Jon Johansen not only > intended to carry out this stated purpose, but in fact carried it out by > contributing his work to an open source DVD player development project > already in progress. There is evidence, further, that this aim did achieve > fruition in the code of the LiViD DVD player and in the program "css-auth" > which owe their existence and viability to Johansen's work. > > Your honor, there is ample evidence that this program was *intended* to be > part of an RE effort; and that it *has been utilized* to that end, and > further, *utilized successfully* to that end. The distribution of DeCSS is > covered by 1201(f)(3). The plaintiffs are a booty. Can I have a cookie? > Thank you your honor. :) Plaintiff: "Your honor, we appreciate the defendent counsel's attempt at humor; it's been a long year for us all. But we would like to point out a few facts to the court and suggest that while the authors of DeCSS did in fact use the program to assist the effort to create a Linux DVD player, this is by no means evidentially their original intent and therefore should not be considered as a reverse engineering exemption under 17USC1201. First, the DeCSS program was developed on the Windows operating system, which already had a number of DVD players available - including the Xing player, from which the DeCSS authors illegally misappropriated a proprietary DVD decryption key. There is no need for an "open source" DVD player on the Windows platform. In fact, DeCSS will not operate at all on any other operating system besides Microsoft Windows. The defendents claim that the Windows development was due to there being Windows support for the UDF format used on DVD, while no support existed on Linux. But the fact is, UDF support on Linux was available in patch form and this fact was well known. Any Linux developer capable of writing a DVD player would surely be able to patch a kernel. Second, the source code was not released until well after the executable program was in circulation. If the intent here were to enable the LiViD group to create a DVD player program, surely the source code would have been paramount. In reality, the evidence suggests that the source code to DeCSS was released only as an afterthought, once the program was already in distribution among Windows users. Third, at least one post in the LiViD archives by Johansen, dated October 6 1999, indicates that DeCSS is a contemporary of DoD Speed Ripper, a self-professed DVD copying utility for the Windows operating system. While this does not outright condemn DeCSS, it casts some doubt on the statements by Johansen that DeCSS was never intended to be a DVD copier. (http://livid.on.openprojects.net/pipermail/livid-dev/1999-October/000494.html) Your honor, we admit that there is little direct evidence that DeCSS was intentionally designed to copy DVDs. Fortunately such evidence is unnecessary, since DeCSS still obviously circumvents our access control technology. It *is*, however, necessary for the defendents to demonstrate convincing evidence that DeCSS was in fact designed to help create a Linux DVD player in order to claim a reverse engineering exemption under 17USC1201. We submit that this convincing evidence does not exist. They would first need to demonstrate that DeCSS was created specifically for the LiViD DVD effort; this they cannot do. They would need to show that DeCSS is required for the interoperation of computer programs - in this case, they claim, the LiViD DVD player ( as questionable as DeCSS ) and the Linux operating system - which they cannot do confidently since they themselves will admit that DeCSS will not execute on a Linux operating system. In light of circumstantial evidence, and in the absense of convincing direct evidence that DeCSS was designed specifically to assist in the LiViD effort, we maintain that it's creation cannot be considered a legitimate reverse engineering exemption under 17USC1201. Thank you, your honor." > > > which would have had to incorporate the code > > > that was developed in the "proof of concept" app DeCSS. Many people > > > don't release their intermediate steps ... but if it got released > > > by accident, well that shouldn't be any different than the release > > > of the final product from a legal standpoint. If the code is legit > > > it's legit. If it's not then the DVD player would be illegal. But > > > we've determined that RE to create interoperating software is legit. > > > > We have? I wasn't aware that anyone on this list has settled this in > > court. I know what the law says.. but you're generalizing a passage > > in 17 USC 1201 that has lots of potential holes. > > Check the interoperability string, Rob, and 1201(f)(1)-(3) again. None of which means that anything has been "determined". This implies that a conclusion has been reached - it's not our place to do that. And, BTW, I reread 1201(f)1-3 just before I sent out that last post, and my opinion on the general slipperyness of the passage stands. For anyone here to believe that they've conclusively determined anything under that passage (and frankly 1201 in general) is a sign of self-reinforcing delusion. > > Example: "creating interoperating software" ain't exactly right. There's > > this whole "programs with other programs" bit; that assumes that a court > > will accept that DVD media is a program. The "RE for interoperating > > is legit!" thing isn't quite an axiom yet. > > DVD doesn't have to be one of the interoperating programs. Neither does > whatever is RE'd. The only interoperability that has to exist has to be with > an *original* program and another program. That means that interoperability, > legally understood, is satisfied between the LiViD player and a > DVD-unsupported operating system. If an RE effort is aiming at producing > *this* sort of interoperability, that's all we need. > > The legal def is extremely broad. Which is why it's going to be interpreted based on congressional intent. We can't just weasel around with wording. Kaplan will look at it and say, "That's not what Congress meant" and shut down the argument; more to the point, he'll think we're playing word games with the court and we'll just piss him off again. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 22:55:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09262 for dvd-discuss-outgoing; Thu, 27 Apr 2000 22:55:42 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA09259 for ; Thu, 27 Apr 2000 22:55:38 -0400 Received: (qmail 940 invoked by uid 502); 28 Apr 2000 02:58:12 -0000 Date: Thu, 27 Apr 2000 22:58:12 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427225812.G27466@linuxpower.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1B03@mail2.onetouch.com> <20000427173334.Z27466@linuxpower.org> <20000427211817.A28960@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <20000427211817.A28960@thud.reric.net>; from Eric Seppanen on Thu, Apr 27, 2000 at 09:18:17PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 09:18:17PM -0500, Eric Seppanen wrote: > On Thu, Apr 27, 2000 at 05:33:34PM -0400, greslin@linuxpower.org wrote: > > > > The weakness of the "proof of concept" argument is that, > > if I recall correctly, DeCSS was being distributed as a binary > > for some time before it was generally available in source code > > form. That's *sure* to come out in trial; it gives the impression > > that knowing how it worked was less important than being able > > to use it. > > > If DeCSS were written as a "necessary step" towards the building of > > a Linux DVD player, logic would indicate that a source code release > > would have come first. Especially in light of the argument that > > DeCSS was part of an OS project and that the source code was so > > fired-up important. > > That's an excellent point. The answer is: the purpose of the public > release of DeCSS was to help developers to jump past the initial > filesystem and scrambling problems and jump to the stage of IFO parsing > and VOB playing. For this purpose it matters not at all whether source is > included. > > In fact, I seem to recall a couple of people thinking that a source > release might lead to quicker retiring of the player key used. If that > were true there's a certain logic behind a binary public release and a > secret source release to other folks working on the CSS problem. I'd like to find out if there's any evidence of this. This is the first time I've heard this theory. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 23:11:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10657 for dvd-discuss-outgoing; Thu, 27 Apr 2000 23:11:51 -0400 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 XAA10654 for ; Thu, 27 Apr 2000 23:11:48 -0400 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Apr 2000 11:07:17 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0370CE@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 ripper Date: Fri, 28 Apr 2000 11:07:16 +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 Rio circumvented the copyprotection of CD's (remember CD's were meant to be hard to copy when they came out) by having a program that ripped CD's into MP3 format. They then transferred that file from the hard disk to the Rio player. This is no different to ripping a DVD to transfer the de-crypted video file into a car based entertainment system. This justifies (it better, coz its a product I'd like to sell) having a windows based ripper (DeCSS) that anyone on their winslows box can use, that can give a file that can be uploaded to a (non-end-user-involved-Linux) entertainment box in their car. I do this now for Audio. This whole DeCSS issue is causing damages to small people who want to grab a market share for car video players. cya, Andrew... http://www.opendesign.cx From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 23:22:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11547 for dvd-discuss-outgoing; Thu, 27 Apr 2000 23:22:38 -0400 Received: from 242688hfc63.tampabay.rr.com (qmailr@242673hfc242.tampabay.rr.com [24.26.73.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA11544 for ; Thu, 27 Apr 2000 23:22:36 -0400 Received: (qmail 1694 invoked by uid 502); 28 Apr 2000 03:25:12 -0000 Date: Thu, 27 Apr 2000 23:25:12 -0400 From: greslin@linuxpower.org To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 ripper Message-ID: <20000427232512.I27466@linuxpower.org> References: <54A50136B6CAD3118FBD00C00D00DDEF0370CE@mits_perth_com1.mitswa.com.au> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.4us In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF0370CE@mits_perth_com1.mitswa.com.au>; from McMeikan, Andrew on Fri, Apr 28, 2000 at 11:07:16AM +0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 11:07:16AM +0800, McMeikan, Andrew wrote: > Rio circumvented the copyprotection of CD's (remember CD's were meant to be > hard to copy when they came out) by having a program that ripped CD's into > MP3 format. They then transferred that file from the hard disk to the Rio > player. With all due respect, this is nonsense. CD's are not copy protected; just because they may have been difficult to copy when they first came out doesn't mean that technology was put in place intentionally to make copying difficult. DVD on the other hand is just chock full of copy protection goodness. -- Rob Warren (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 23:40:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13297 for dvd-discuss-outgoing; Thu, 27 Apr 2000 23:40:54 -0400 Received: from dial104.roadrunner.com (dial104.cybermesa.com [209.12.75.104] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13294 for ; Thu, 27 Apr 2000 23:40:52 -0400 Received: (from paul@localhost) by dial104.roadrunner.com (8.8.7/8.8.7) id VAA03835 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Apr 2000 21:45:17 -0600 Date: Thu, 27 Apr 2000 21:45:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 ripper Message-ID: <20000427214516.A3816@localhost> References: <54A50136B6CAD3118FBD00C00D00DDEF0370CE@mits_perth_com1.mitswa.com.au> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF0370CE@mits_perth_com1.mitswa.com.au>; from andrew.mcmeikan@mitswa.com.au on Fri, Apr 28, 2000 at 11:07:16AM +0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 11:07:16AM +0800, McMeikan, Andrew wrote: > Rio circumvented the copyprotection of CD's (remember CD's were meant to be > hard to copy when they came out) by having a program that ripped CD's into > MP3 format. They then transferred that file from the hard disk to the Rio > player. "Circumvention" is defined in 17 USC 1201(b)(3)(A) as: (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 Where "technological measure" is defined in 1201(b)(3)(B): (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. By this definition, Rio did not "circumvent," nor is there any "techological measure" applied to audio CDs. I don't see any connection between the Rio and section 1201. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 23:49:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13957 for dvd-discuss-outgoing; Thu, 27 Apr 2000 23:49:08 -0400 Received: from dial127.roadrunner.com (sf-du127.cybermesa.com [209.12.75.127]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13954 for ; Thu, 27 Apr 2000 23:49:02 -0400 Received: (from paul@localhost) by dial127.roadrunner.com (8.8.7/8.8.7) id VAA03984 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Apr 2000 21:53:31 -0600 Date: Thu, 27 Apr 2000 21:53:30 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000427215330.A3848@localhost> References: <20000427194002.B27466@linuxpower.org> <000601bfb0a7$c065fe80$fe7945ce@bugbug.WinNATDomain> <20000427225132.E27466@linuxpower.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000427225132.E27466@linuxpower.org>; from greslin@linuxpower.org on Thu, Apr 27, 2000 at 10:51:32PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Apr 27, 2000 at 10:51:32PM -0400, greslin@linuxpower.org wrote: [ ... ] > First, the DeCSS program was developed on the Windows operating system, > which already had a number of DVD players available - including the Xing > player, from which the DeCSS authors illegally misappropriated a > proprietary DVD decryption key. There is no need for an "open source" > DVD player on the Windows platform. In fact, DeCSS will not operate > at all on any other operating system besides Microsoft Windows. [ ... ] Does anyone have a circa Oct. 1999 wine installation that they can use to test this hypothesis? (I'd do it myself but there is the small matter of no DVD-drive). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Apr 27 23:59:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14870 for dvd-discuss-outgoing; Thu, 27 Apr 2000 23:59:47 -0400 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 XAA14867 for ; Thu, 27 Apr 2000 23:59:46 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA05024 for ; Fri, 28 Apr 2000 00:00:07 -0400 (EDT) Date: Fri, 28 Apr 2000 00:00:07 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <20000427225132.E27466@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, 27 Apr 2000 greslin@linuxpower.org wrote: > The defendents claim that the Windows development was due to there being > Windows support for the UDF format used on DVD, while no support existed > on Linux. But the fact is, UDF support on Linux was available in patch > form and this fact was well known. Any Linux developer capable of > writing a DVD player would surely be able to patch a kernel. See http://www.kernel.dk for a history of DVD-ROM patches. I'm not sure taht at the time DeCSS was written that the support for the various ioctls was present in stable form. Wheen exactly was DeCSS developed? Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 00:32:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17634 for dvd-discuss-outgoing; Fri, 28 Apr 2000 00:32:17 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA17631 for ; Fri, 28 Apr 2000 00:32:13 -0400 Message-ID: <20000428043205.9582.qmail@web513.mail.yahoo.com> Received: from [24.28.154.65] by web513.mail.yahoo.com; Thu, 27 Apr 2000 21:32:05 PDT Date: Thu, 27 Apr 2000 21:32:05 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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: > My point was that MORE didn't seem to be planning on writing a player > themselves. There's no question that there were some MORE-LiViD > sympathies that resulted in LiViD receiving the code. I agree with you - but I think 1201(f) recognizes that specialized partial solutions are important and protected, especially for small The house legislative history speaks of the importance of developers of independant software being able to rely on custom 3rd party tools to facilitate access. "The ability to rely on third parties is particularly important for small software developers who do not have the capability of performing these functions in-house." The relevant parts of the House history regarding 1201(f) are at: http://eon.law.harvard.edu/archive/dvd-discuss/msg00897.html > The fact that DeCSS is a Windows program is one; the fact that it was > initially released in binary form is another. As I said, nothing > direct, but just enough to convince Kaplan to throw the question out > as irrelevant and rule based on "it breaks our toys". Hmmm, but I think it's really 2600 that has to justify why they distribute it. This is a blessing and a curse. If JJ waffled initially, but eventually gave his code to "programmers everywhere" via Derek Fawcus, then 2600 can say they relied on his eventual, not initial, intent. On the other hand, they also have to fight claims that they didn't subvert the reverse engineering intent. > It just seems to me that if this particular argument has any legal > relevance in this case, that the burden of proof is on our side to > show that DeCSS was undeniably intended as part of an RE effort to > support the LiViD effort. I don't think we have that undeniability. This has two parts, because 1201(f)(3) piggy backs on 1201(f)(2). I think JJ's testimony and the LiViD record provide enough evidence to be accepted sans opposing evidence. But this only meets the (f)(2) part - the tool was designed for interoperability. Note (f)(2) only matters because (f)(3) relies on it - 2600 has to show they distributed an (f)(2) allowed tool legally by using (f)(3). This I've heard NO evidence either way. > Last time I checked he was charged with two possible violations of > Norwegian law: one involved "breaking a security arrangement" to > access data and the other was a violation of Norwegian copyright law, > Norwegian Copyright Act sect. 54. > > Have these charges been dropped? If so, do you have a link to the > story? The EFF archives (they're the ones representing him in court) > don't show anything more recent than January 25th. http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/20000125_bing_johansen_case_summary.html Thanks for the link. It says: "He has not been indicted." I haven't heard that he has been indicted. I think I would have heard, but I don't really know. It's been a while now (over three months) and it seems like the kind of case where the real issue is legal not factual. > "As a result they were able to create DeCSS, a free DVD decoder, that > not only facilitated the creation of previously unavailable open > source DVD players for Linux - also allowed people to copy DVD's." > > http://www.2600.com/news/1999/1112.html Another good cite - thanks again. I don't think this article really explains their motivation for posting DeCSS. It just shows that they were pretty well informed about how DeCSS was being used and misused. I think you are right - they probably posted it in protest to the CA trade secret case. By posting it, they spread the secrets and demonstrate that they aren't secret. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 01:20:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21890 for dvd-discuss-outgoing; Fri, 28 Apr 2000 01:20:04 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA21887 for ; Fri, 28 Apr 2000 01:20:03 -0400 Message-ID: <20000428051955.13222.qmail@web513.mail.yahoo.com> Received: from [24.28.154.65] by web513.mail.yahoo.com; Thu, 27 Apr 2000 22:19:55 PDT Date: Thu, 27 Apr 2000 22:19:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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 On Thu, Apr 27, 2000 at 10:51:32PM -0400, greslin@linuxpower.org wrote: [ ... ] > First, the DeCSS program was developed on the Windows operating system, > which already had a number of DVD players available - including the > Xing player, from which the DeCSS authors illegally misappropriated > a proprietary DVD decryption key. There is no need for an "open > source" DVD player on the Windows platform. In fact, DeCSS will > not operate at all on any other operating system besides > Microsoft Windows. [ ... ] Paul already noted that wine might run DeCSS, but there are a couple of other points to make about this. It is highly doubtful that "the DeCSS authors illegally misappropriated a proprietary DVD decryption key". Reverse engineering is emphatically not misappropriation of trade secrets, under either CA or Norwegian law. Moreover, in most European Union countries, including Norway, a contract limiting reverse engineering is void. Even under CA law, the Xing clickwrap 'contract' in question is probably void for any number of reasons. First, 17 USC 117 allows purchasers of software the right to install it on a machine. The clickwrap "contract" offered nothing that wasn't already allowed and fails the consideration test. Second, there is no evidence that it actually was installed, or that the clickwrap contract was ever presented. It seems quite likely that someone intent on doing a reverse engineering process would avoid the offer altogether and work to extract the key directly from the distribution without installing. The party claiming breach must present evidence that there was a contract. Third, even if someone clicked 'yes', this is a "contract of adhesion" meaning that no bargaining was possible. As such there are limits on terms that are outside the 'reasonable expectations' of the weaker side or terms that are 'oppressive' or 'unconsionable'. Certainly if EU law has said that reverse engineering terms are statutorily unreasonable, this should qualify. Fourth, the terms were presented in English to consumers who do not speak this as their first language. Exploiting language barriers has been considered a justification for claims of 'unconscionablility'. Fifth, giving up the right to reverse engineer is the same as giving up the right to examine ideas. A contract that leverages copyright to stiffle competitive ideas is likely a 'misuse of copyright' and void. Moreover, since the non-protection of ideas rests on First Amendment grounds, this is akin to giving up a fundamental right and requires a high standard of bargaining. Sixth, there is a strong argument that Federal copyright law would preempt a reverse engineering clause in a state copyright licence contract, although this is not settled law. Nimmer thinks it should be so and in Vault v Quaid the 5th Circuit agreed. Seventh, usually a contract is formed when communication of acceptance is sent to the offering party. Silence is not acceptance. In this case, the results of clicking "I agree" were never forwarded to Xing. Thus the contract was not 'accepted' in the traditional sense. Also, no undue benefit was gained by proceeding with the installation, since 17 USC 117 allows this as a result of the separate contract of sale. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 01:40:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA23930 for dvd-discuss-outgoing; Fri, 28 Apr 2000 01:40:41 -0400 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 BAA23927 for ; Fri, 28 Apr 2000 01:40:40 -0400 Received: from bugbug (max01-59.suba.com [206.69.121.251]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id AAA03240 for ; Fri, 28 Apr 2000 00:40:59 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 00:40:22 -0500 Message-ID: <000001bfb0d4$3f373040$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: <20000427204027.C27466@linuxpower.org> 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 Rob wrote: > > On Thu, Apr 27, 2000 at 06:59:31PM -0500, sparky wrote: > > Rob wrote: > > > > > > If DeCSS were written as a "necessary step" towards the building of > > > a Linux DVD player, logic would indicate that a source code release > > > would have come first. Especially in light of the argument that > > > DeCSS was part of an OS project and that the source code was so > > > fired-up important. > > > > Hasn't JJ said that he intended DeCSS as work toward the > creation of a DVD > > player on unsupported platforms? Is this not borne out by the > fact that he > > gave the code to a project trying to do exactly that? > > Not exactly. Jon said at several points (one of which was in private > correspondence with yours truly) that his intent was to bring DVD > playability > to the unsupported platforms, mainly FreeBSD and Linux. He's > never claimed > that DeCSS was simply going to be an intermediary step towards writing a > DVD player. A thin line, but it's there. > > AFAIK he never claimed to be writing a DVD player. ?? I'm sorry, I can't see the line at all. I said: "intended DeCSS as work toward the creation of DVD player(s) on unsupported platforms"; you said: "intent to bring DVD playability to the unsupported platforms". Like I said, ?? I guess I don't see a differece between whether Jon intended DeCSS for a player he would write himself, or for those written by others. Well, I see a small difference, but *all* of it was open source, and he eventually gave it to another open source project. The actions would cancel out the words if they were truly contradictory, but that seems not to be the case. sparky > > > > I think that the view here of "necessary step" is too narrow; > you mean that > > "necessary" means "necessary for a specific project" while in > fact there is > > ample reason to create this tool separately for *any number* of > projects. > > > > Also, to the extent that a "source code release" was a first > step toward the > > building of a Linux player - isn't that step evident in JJ's > giving the code > > to Derek? > > *Maybe*. > > It would be a lot more solid if the binary hadn't been > distributed before this > point. The fact that the binary had been released first can > easily be used > to indicate that LiViD involvement was an afterthought. The binary was released before he gave the source to Derek? Then why did Derek need Jon at all? He could have grabbed DeCSS off the web wherever it was, decompiled it, and used it that way - wasn't this okay since it's open source? Then Derek changes Jon's code, now by the way open source works, the code is just as much Derek's as Jon's, and Derek intended it toward RE. Okay, that's a little beside the point. However! Again, Jon did not have a particular project in mind when he first wrote the code. Okay. You are saying that it would be better if he had. Why? There was obviously a groundswell to make a DVD player for unsupported platforms, esp Linux. Jon's smart, he notices this, wants something like it himself, and makes a tool which supports *all* efforts. Why does he need to attach himself to a particular project before doing this? That would make no sense, esp if he *did* intend to write his own player, which he obviously later decided against, assuming he did; and when he so decided, where did the code go? Right to LiViD, do not collect $200. Sorry, inauspicious reference. > > Compare DeCSS with DoD. They both do basically the same job, built around > the Xing key. They both hit the airwaves in binary form around > roughly the > same time. The difference between the two is that the authors of DeCSS > chose *later* to give the code to the LiViD group. Would anyone in this > list accept the banning of DoD while allowing DeCSS? Why? Because later actions show previous intentions. Surely the law has allowance for that? Esp since there is NO evidence that Jon didn't intend to use it the way he used it/allowed it to be used. > > One other point.. the public statements made by Jon came after the legal > fallout began. This was a major sticking point for me a while > ago, because it > seemed to me that Jon might have said "oh shit, better hide > behind the Linux > story". There didn't seem to be any pro-OS or pro-LiViD > association before > the code was given to Derek. > > I personally believe his story, after contacting him myself. He sounds > completely plausible and his story jibes with Derek's (whom I've also > corresponded with). > > But short of dragging him into a U.S. court (remember that Jon > lives in Norway > and Derek is a Brit) and putting him under oath, there's no way > to counter the > argument that he had every motivation to be less than truthful > about MORE's > intents. Any judge would listen to this argument, drop it > entirely as hearsay > and rule based on the evidence. > > And, unfortunately, the evidence trail seems to start at the binary-only > release of DeCSS. And - assuming we read the worst into that binary release - it takes a substantial turn when he *gives* the code to an open source RE project. By turn, I mean that the "evidence" of the binary release is thrown entirely into question. It means nothing by itself. There must be corroborating evidence that this is the correct interpretation of this action, and there is none. In fact, it could have been accidental. The fact that it's suddenly out there doesn't even mean that Jon wanted it to be out there. Maybe the German or Dutch dudes gave it to some of their friends. Who knows? At any rate, by the time DeCSS appeared on 2600, it had been *incorporated* into an RE effort. Everyone who knew about it considered it RE. Seeing piracy as the *only* intent in a binary "release" whose circumstances are unknown is a leap. If you still have Jon's ear, you should find out the details of this early binary release. > > > > (Isn't all this first name stuff and use of initials cute? Aw.) I > > think you mean that for DeCSS to be used in *any* project, the source of > > that would have to be first publicly released. Was it never? > Even if it was > > never, in the context of an RE effort (and I'm not referring to a > > specific one, but to RE in general, for which DeCSS was > intended), is the > > release of source different in meaning from a release of the binary? The > > binary is meant to be used after all, and if you are > distributing source, > > others will compile it and use the compiled exe (or whatever it is after > > it's compiled). > > It's important if we're arguing that DeCSS was part of an open > source project > and innocently was not meant as a ripping tool. It's an > indicator of intent. > By there being a binary release first, it's harder to claim that > the intent > was to provide an open source player. What would have made more > sense would > be a simultaneous release of binary and source. ("this is what we did and > this is how we did it") > > As it stands, it appears that the original intent behind the release of > DeCSS was to enable something to be done, but not to explain how. But look again at how you have to put it: "something to be done.." If this is how the MPAA plaintiffs put it, that's great for us. Sure, there's question about what Jon (or whoever) intended by the binary release - but can you show it was piracy? Can you show that it was to copy DVDs in order to distribute/sell/whatever? Maybe DeCSS was given to a few friends in order to watch their DVDs on their Linux or BSD boxes; or maybe it was distributed as a recruiting effort to get others to work on a player. It's entirely hypothetical that it was *intended* for piracy, there's just no compelling evidence. I mean, look at it this way: "something" has to be: -scenario uno: DeCSS rips playable mpeg2 files. All this shows is that you can use DeCSS to exercise a fair use right. Sure, DeCSS only works on Windows. Is that true of mpeg-2 files? assuming no, you rip 'em in Winders, you move them to Linux and watch em there. DeCSS is not quite a player, but almost. -scenario dos: DeCSS dips mpeg2 files, but pretty much unplayable/unenjoyable ones. The "something" here obviously can't be piracy. > > > > A fact which may be important: what license notice was attached > to DeCSS the > > exe? Was there notice that it was GPL'd, or licensed in other > ways? If it > > was, downloaders would have known that they were permitted to > extract the > > source from the binary. > > I'm not sure exactly when DeCSS was GPL'ed. It didn't start that way. It > certainly wasn't GPL before the source was released. > > Also, not to quibble, but you don't really extract source from a > binary. You > extract a disassembly. Another thin technical line. I'm still learning, quibble me anytime :)) sparky > > > -- > Rob Warren > > (email) greslin@linuxpower.org (homepage) www.iag.net/~aleris > Visit the Openlaw DVD/DeCSS FAQ at www.cssfaq.org! > > From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 02:01:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26594 for dvd-discuss-outgoing; Fri, 28 Apr 2000 02:01:15 -0400 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 CAA26591 for ; Fri, 28 Apr 2000 02:01:14 -0400 Received: from bugbug (max01-59.suba.com [206.69.121.251]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id BAA03647 for ; Fri, 28 Apr 2000 01:01:19 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 01:00:44 -0500 Message-ID: <000101bfb0d7$178ae8e0$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: <20000427213950.D27466@linuxpower.org> 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 > -----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: Thursday, April 27, 2000 8:40 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > > On Thu, Apr 27, 2000 at 05:38:52PM -0700, Bryan Taylor wrote: > > > > What evidence are you refering to that is relevant to 2600? > > The evidence I was talking about was evidence that DeCSS is basically > a copying tool. The plaintiffs will be able to produce ample evidence > that it's being used as such, and indirect evidence that it was designed > as such. > > Regarding 2600.. > > It can be shown that 2600 saw DeCSS as a DVD copier at the point where > they first mirrored the code. On 2600's website, there is a news story > from November 12 1999 titled "DVD Encryption Cracked". It contains a > fairly even-handed story and local mirrors of css-auth and the DeCSS > binary. > > The news story says this: > > "As a result they were able to create DeCSS, a free DVD decoder, that > not only facilitated the creation of previously unavailable open source > DVD players for Linux - also allowed people to copy DVD's." > > http://www.2600.com/news/1999/1112.html > > I know.. it's not quite as sexy as saying "Download DeCSS! Copy DVD's!". > But it also doesn't say that DeCSS is a DVD player.. it only says that it > enabled others to make DVD players; the only other significance attributed > to DeCSS by 2600 here is as a DVD copier. > > It's not as sexy as a page of blink tags screaming out "Download this! It > lets you copy DVDs!" but it's still there. They see it as a copying device, but before 1201 existed, there was no question that copying something you'd bought was fair use. None. And there shouldn't be any question now, what with that clause in 1201.. Also, note that 2600 was aware of DeCSS' RE use. This may not put 2600 in the clear automatically; but it says loads for DeCSS: a public notice of its importance for and use in an RE effort. If we apply 1201(f)(3), it doesn't really matter, I think, if 2600 said something mildly bothersome to the MPAA. 1201(f)(3) say: it okay. sparky From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 02:18:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA28069 for dvd-discuss-outgoing; Fri, 28 Apr 2000 02:18:55 -0400 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 CAA28066 for ; Fri, 28 Apr 2000 02:18:54 -0400 Received: from bugbug (max01-59.suba.com [206.69.121.251]) by suba01.suba.com (8.9.1a/8.9.1) with SMTP id BAA03866 for ; Fri, 28 Apr 2000 01:11:29 -0500 (CDT) From: "sparky" To: Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 01:10:54 -0500 Message-ID: <000201bfb0d8$83079540$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: <20000428043205.9582.qmail@web513.mail.yahoo.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 Bryan wrote: > > --- greslin@linuxpower.org wrote: > > > > It just seems to me that if this particular argument has any legal > > relevance in this case, that the burden of proof is on our side to > > show that DeCSS was undeniably intended as part of an RE effort to > > support the LiViD effort. I don't think we have that undeniability. > > This has two parts, because 1201(f)(3) piggy backs on 1201(f)(2). I > think JJ's testimony and the LiViD record provide enough evidence to be > accepted sans opposing evidence. But this only meets the (f)(2) part - > the tool was designed for interoperability. Note (f)(2) only matters > because (f)(3) relies on it - 2600 has to show they distributed an > (f)(2) allowed tool legally by using (f)(3). This I've heard NO > evidence either way. But note the quote of the 2600 webstory on Rob's other post, where it is quite apparent that 2600 knew it was a tool used to create software. they also had a mirror of css-auth up. If we're looking for intent of 2600, you don't get much better than their public statements while they were doing the deed. Those of the other sites were good enough; does 2600 have to intone some ritualisitic legal spell when they're distributing something which 1201(f)(3) says is okay to distribute? So they say "you can copy your movies" - that's just their way of making the MPAA uncomfortable, it's hardly evidence of obvious intent to advocate or contribute to piracy. sparky > > > Last time I checked he was charged with two possible violations of > > Norwegian law: one involved "breaking a security arrangement" to > > access data and the other was a violation of Norwegian copyright law, > > Norwegian Copyright Act sect. 54. > > > > Have these charges been dropped? If so, do you have a link to the > > story? The EFF archives (they're the ones representing him in court) > > don't show anything more recent than January 25th. > http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/20000125_ bing_johansen_case_summary.html Thanks for the link. It says: "He has not been indicted." I haven't heard that he has been indicted. I think I would have heard, but I don't really know. It's been a while now (over three months) and it seems like the kind of case where the real issue is legal not factual. > "As a result they were able to create DeCSS, a free DVD decoder, that > not only facilitated the creation of previously unavailable open > source DVD players for Linux - also allowed people to copy DVD's." > > http://www.2600.com/news/1999/1112.html Another good cite - thanks again. I don't think this article really explains their motivation for posting DeCSS. It just shows that they were pretty well informed about how DeCSS was being used and misused. I think you are right - they probably posted it in protest to the CA trade secret case. By posting it, they spread the secrets and demonstrate that they aren't secret. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 04:21:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05696 for dvd-discuss-outgoing; Fri, 28 Apr 2000 04:21:46 -0400 Received: from bur-jud-118-039.rh.uchicago.edu (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 EAA05693 for ; Fri, 28 Apr 2000 04:21:38 -0400 Received: from localhost (sam@localhost) by bur-jud-118-039.rh.uchicago.edu (8.9.3/8.9.3) with ESMTP id DAA01738 for ; Fri, 28 Apr 2000 03:22:03 -0500 Date: Fri, 28 Apr 2000 03:22:03 -0500 (CDT) From: sam th X-Sender: sam@bur-jud-118-039.rh.uchicago.edu To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] NY Times Article about the case In-Reply-To: <611C0CE12596D311B466009027D5E7591E4C56@c3100.clearway.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 At this link http://nytimes.com/library/tech/yr/mo/cyber/cyberlaw/28law.html there is an interesting article, focusing mostly on Garbus (the 2600 lawyer). Fairly evenhanded. sam th sam@uchicago.edu http://sam.rh.uchicago.edu From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 04:44:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07967 for dvd-discuss-outgoing; Fri, 28 Apr 2000 04:44:04 -0400 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 EAA07963 for ; Fri, 28 Apr 2000 04:44:00 -0400 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Apr 2000 16:39:33 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0370D0@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 rip per Date: Fri, 28 Apr 2000 16:39:33 +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 Perhaps I am too paranoid in how I interpret it. I see it that if a technological measure exits then to do anything with the data without some explicit authority impairs that measure and thus is circumvention. I see it that an application of information or a process of treatment is certainly needed to get from a silver disc to music. By the compact disc logos on CD's and on players I can see that I am authorized to play them that way. How can I be sure that authority exists to convert an audio CD to MP3 format? I just had a look through patents regarding CD players and they seem to use the word process in there a lot. To me it seems 1201(b)(3)(A,B) are definitions that rely almost solely on authorization. I could be just over paranoid, but the Super Audio Compact Disc **does** have a protection feature (invisible second layer, for more data/security watermark). Today that is a technological measure but when we all have drives that can read the extra layer does that mean the copyright holders "technological measure" does not exist anymore? DVD encryption is just a way to control what brand player you can watch it on. If it was a true encrypted product you would purchase a 'dongle' just like you do with expensive encrypted software. Since there is no dongle sold with the DVD either there is never an authorization to play it, or there is no encryption. cya, Andrew... > -----Original Message----- > From: Paul Fenimore [SMTP:fenimore@roadrunner.com] > Sent: Friday, April 28, 2000 11:45 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DeCSS(.exe) justification same as RIO's > MP3 ripper > > On Fri, Apr 28, 2000 at 11:07:16AM +0800, McMeikan, Andrew wrote: > > Rio circumvented the copyprotection of CD's (remember CD's were meant to > be > > hard to copy when they came out) by having a program that ripped CD's > into > > MP3 format. They then transferred that file from the hard disk to the > Rio > > player. > > "Circumvention" is defined in 17 USC 1201(b)(3)(A) as: > > (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 > > Where "technological measure" is defined in 1201(b)(3)(B): > > (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. > > By this definition, Rio did not "circumvent," nor is there any > "techological > measure" applied to audio CDs. > > I don't see any connection between the Rio and section 1201. > > > Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 07:28:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA20179 for dvd-discuss-outgoing; Fri, 28 Apr 2000 07:28:16 -0400 Received: from kruuna.Helsinki.FI (sendmail@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA20176 for ; Fri, 28 Apr 2000 07:28:14 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e3SBSaL16481 for ; Fri, 28 Apr 2000 14:28:36 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 28 Apr 2000 14:28:35 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <20000427225132.E27466@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, 27 Apr 2000 greslin@linuxpower.org wrote: >"Your honor, we appreciate the defendent counsel's attempt at humor; it's >been a long year for us all. But we would like to point out a few facts >to the court and suggest that while the authors of DeCSS did in fact use >the program to assist the effort to create a Linux DVD player, this is by >no means evidentially their original intent and therefore should not be >considered as a reverse engineering exemption under 17USC1201. I thought what mattered was purpose, not intent. I think the argument (which sadly isn't mine) that decss:d data was needed to develop the other parts of the livid project (non-css related, that is) acts favorably to show benign purpose, if not even intent. >First, the DeCSS program was developed on the Windows operating system, >which already had a number of DVD players available - including the Xing >player, from which the DeCSS authors illegally misappropriated a >proprietary DVD decryption key. There is no need for an "open source" >DVD player on the Windows platform. This is nullified by the above argument. Decss:d data is what it is, regardless of where it comes from. It's still needed in the effort to build a player. >Third, at least one post in the LiViD archives by Johansen, dated October >6 1999, indicates that DeCSS is a contemporary of DoD Speed Ripper, a >self-professed DVD copying utility for the Windows operating system. >While this does not outright condemn DeCSS, it casts some doubt on the >statements by Johansen that DeCSS was never intended to be a DVD copier. The fact that DoD developers did not have contact with livid ones while JJ did suggests otherwise. At the time of appearance of both these programs, the livid community got their help from decss. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 08:07:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA23118 for dvd-discuss-outgoing; Fri, 28 Apr 2000 08:07:36 -0400 Received: from kruuna.Helsinki.FI (sendmail@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA23115 for ; Fri, 28 Apr 2000 08:07:34 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e3SC7tG23497 for ; Fri, 28 Apr 2000 15:07:55 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 28 Apr 2000 15:07:54 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 rip per In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF0370D0@mits_perth_com1.mitswa.com.au> 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, 28 Apr 2000, McMeikan, Andrew wrote: >I see it that an application of information or a process of treatment is >certainly needed to get from a silver disc to music. But does the treatment consist of applying some unlocking data? No. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 10:25:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03704 for dvd-discuss-outgoing; Fri, 28 Apr 2000 10:25:28 -0400 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 KAA03701 for ; Fri, 28 Apr 2000 10:25:22 -0400 Received: from sympatico.ca ([206.172.224.133]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000428142512.BQHE24624.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Fri, 28 Apr 2000 10:25:12 -0400 Message-ID: <3909A024.76EEA614@sympatico.ca> Date: Fri, 28 Apr 2000 10:28:52 -0400 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] Sega Question References: <20000428051955.13222.qmail@web513.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 - I know this is still a controversial matter in some people's eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue to be essentially over. They are valid. Period. Whatever controversy was raised in regards to shrinkwrap licenses (i.e. physical boxes that contain software, notice of an agreement printed on the outside, text of the agreement inside, plus an essential right to return for a full refund after having a chance to read the agreement) was settled to the satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) Shifting the logic of that case to clickwrap licenses, in my reading, only -raises- the level of enforceablility. The controversy about shrinkwrap licenses was twofold: (a) it is a contract of adhesion, (b) because the precise terms aren't brought to the attention of the buyer until after purchase, a valid K could not have been formed. Well, contracts of adhesion are enforceable. Period. Have been for a long time. -Provided- they meet the legality of contracts in general, and are not unconscionable. The ProCD case dealt with the second. The buyer becomes aware of the existence of the agreement prior to purchase, and has the right to return the goods after reading the precise terms. It is as difficult for me as it was to the 7th Circuit to see where the unfairness is raised. "Clickwrap" licenses are distinct from shrinkwrap licenses only in the second respect: provided they are designed properly, the buyer is forced to read, or at least scroll through, the agreement prior to installing the software. In my reading, this -eliminates- the controvery: it can hardly be said that a person is unaware of the existence of license terms when they are forced to make the positive step of clicking 'agree' before the software is even installed on the machine. Furthermore - let me point out that NO court in the year 2000 is going to render clickwrap licenses unenforceable in the E-commerce age, simply because they are clickwrap licenses. Billions of dollars in the US and international markets are depending on the enforceability of these licenses. I agree that in some case law, there was a trend to treat these as unenforceable, but since ProCD, that trend has been decidedly reversed. In my opinion, this is a GOOD THING. Put another way - consider what you gain by arguing that clickwrap licenses are unenforceable: you get JJ off, and you get a sweeping, sledgehammer-like confirmation of your right to reverse engineer: far more than is necessary. Consider what you LOSE: (a) the GPL is unenforceable (it isn't even a clickwrap license: it is merely a digitized version of the shrinkwrap license), (b) any sales conducted on Ebay are unenforceable, (c) billions of dollars of the economy are thrown into uncertainty as the viability of E-commerce transactions are thrown into the wind, and finally, and most importantly, (d) Congress will simply react to such a decision by enacting a law that specifically provides that such licenses are enforcable, and tack on all sorts of other provisions that go beyond such enforceability into the realm of consumer rights, etc, that hurt us far more than simply the enforceability issue - i.e. EXACTLY what they did in enacting the DMCA. Without addressing your points specifically, the single one that I do agree with is that there is a case for arguing that the -specific- term in the clickwrap agreement prohibiting reverse engineering is unenforceable. The metaphor I've been using is that it is analagous to an agreement in a restaurant that you are allowed to -eat- the sandwich, but you are not allowed to open it up and see precisely what you're eating. Bryan Taylor wrote: > Even under CA law, the Xing clickwrap 'contract' in question is > probably void for any number of reasons. First, 17 USC 117 allows > purchasers of software the right to install it on a machine. The > clickwrap "contract" offered nothing that wasn't already allowed and > fails the consideration test. > > Second, there is no evidence that it actually was installed, or that > the clickwrap contract was ever presented. It seems quite likely that > someone intent on doing a reverse engineering process would avoid the > offer altogether and work to extract the key directly from the > distribution without installing. The party claiming breach must present > evidence that there was a contract. > > Third, even if someone clicked 'yes', this is a "contract of adhesion" > meaning that no bargaining was possible. As such there are limits on > terms that are outside the 'reasonable expectations' of the weaker side > or terms that are 'oppressive' or 'unconsionable'. Certainly if EU law > has said that reverse engineering terms are statutorily unreasonable, > this should qualify. > > Fourth, the terms were presented in English to consumers who do not > speak this as their first language. Exploiting language barriers has > been considered a justification for claims of 'unconscionablility'. > > Fifth, giving up the right to reverse engineer is the same as giving up > the right to examine ideas. A contract that leverages copyright to > stiffle competitive ideas is likely a 'misuse of copyright' and void. > Moreover, since the non-protection of ideas rests on First Amendment > grounds, this is akin to giving up a fundamental right and requires a > high standard of bargaining. > > Sixth, there is a strong argument that Federal copyright law would > preempt a reverse engineering clause in a state copyright licence > contract, although this is not settled law. Nimmer thinks it should be > so and in Vault v Quaid the 5th Circuit agreed. > > Seventh, usually a contract is formed when communication of acceptance > is sent to the offering party. Silence is not acceptance. In this case, > the results of clicking "I agree" were never forwarded to Xing. Thus > the contract was not 'accepted' in the traditional sense. Also, no > undue benefit was gained by proceeding with the installation, since 17 > USC 117 allows this as a result of the separate contract of sale. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 10:38:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04887 for dvd-discuss-outgoing; Fri, 28 Apr 2000 10:38:54 -0400 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 KAA04884 for ; Fri, 28 Apr 2000 10:38:52 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.9.3/8.9.3) with ESMTP id JAA09274 for ; Fri, 28 Apr 2000 09:39:15 -0500 Date: Fri, 28 Apr 2000 09:39:15 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <3909A024.76EEA614@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 Fri, 28 Apr 2000, Ian Hay wrote: > Bryan - I know this is still a controversial matter in some people's > eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue > to be essentially over. They are valid. Period. Whatever controversy > was raised in regards to shrinkwrap licenses (i.e. physical boxes that > contain software, notice of an agreement printed on the outside, text of > the agreement inside, plus an essential right to return for a full > refund after having a chance to read the agreement) was settled to the > satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD > Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) If a shrink wrap agreement is acceptable as long as the terms and implementation of the agreement conform to contract law, can a shrink wrap license be agreed to by a minor? Certainly a minor cannot enter a legal contract without the consent of a parent/guardian in all other instances (if I'm wrong on this, I'll shut up now :). So, can a minor actually be held to the terms of a shrink wrap license? Where that puts this, I don't know. You do bring up a really good point about the GPL being at risk if the shrink/click wrap license is brought into question. It would be rather nasty if every license agreement in the world could be violated by children. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 11:44:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09948 for dvd-discuss-outgoing; Fri, 28 Apr 2000 11:44:21 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA09945 for ; Fri, 28 Apr 2000 11:44:20 -0400 Message-ID: <20000428154406.8712.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 28 Apr 2000 08:44:06 PDT Date: Fri, 28 Apr 2000 08:44:06 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] NY Times Article about the 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 A while back I traded emails with Garbus, and eventually even spoke with him on the phone, briefly. He suggested that he would be amenable to this forum submitting an amicus brief if the case goes to trial. He definitely seems like a heavy-weight. I'm very glad he's on board for 2600. It's interesting that the NYT linked to the embattled mirror list. --- sam th wrote: > At this link > > http://nytimes.com/library/tech/yr/mo/cyber/cyberlaw/28law.html > > there is an interesting article, focusing mostly on Garbus (the 2600 > lawyer). Fairly evenhanded. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 11:45:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10201 for dvd-discuss-outgoing; Fri, 28 Apr 2000 11:45:55 -0400 Received: from dial184.roadrunner.com (dial184.cybermesa.com [209.12.75.184] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA10198 for ; Fri, 28 Apr 2000 11:45:52 -0400 Received: (from paul@localhost) by dial184.roadrunner.com (8.8.7/8.8.7) id JAA00621 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 09:50:01 -0600 Date: Fri, 28 Apr 2000 09:50:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428095000.A527@localhost> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3909A024.76EEA614@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 10:28:52AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm wondering if there isn't some confusion about the mechanism of clickwrap "assent" to a contract, and some other very troublesome trends in IP licensing. Maybe this is a case of bad nomenclature? People are so used to looking at clickwrap mechanisms of assent where the contract is filled with grabbing provision, that they associate the nasty provisions with the name --- even though the name doesn't refer to the _kinds_ of provisions. On Fri, Apr 28, 2000 at 10:28:52AM -0400, Ian Hay wrote: [ ... ] > Furthermore - let me point out that NO court in the year 2000 is going > to render clickwrap licenses unenforceable in the E-commerce age, simply > because they are clickwrap licenses. Billions of dollars in the US and > international markets are depending on the enforceability of these > licenses. I agree that in some case law, there was a trend to treat > these as unenforceable, but since ProCD, that trend has been decidedly > reversed. In my opinion, this is a GOOD THING. > > Put another way - consider what you gain by arguing that clickwrap > licenses are unenforceable: you get JJ off, and you get a sweeping, > sledgehammer-like confirmation of your right to reverse engineer: far > more than is necessary. Consider what you LOSE: (a) the GPL is > unenforceable (it isn't even a clickwrap license: it is merely a > digitized version of the shrinkwrap license), (b) any sales conducted on > Ebay are unenforceable, (c) billions of dollars of the economy are > thrown into uncertainty as the viability of E-commerce transactions are > thrown into the wind, and finally, and most importantly, (d) Congress > will simply react to such a decision by enacting a law that specifically > provides that such licenses are enforcable, and tack on all sorts of > other provisions that go beyond such enforceability into the realm of > consumer rights, etc, that hurt us far more than simply the > enforceability issue - i.e. EXACTLY what they did in enacting the DMCA. So when I read this passage, I see two things: 1. The GPL is a grant of exclusive rights to duplication and to make derivatives under 106(1) and (2). Regardless of what happens to click-wrap, statute says that the recipient of a program has no right to do these things without either an explicit grant from the copyright owner, or a valid fair use defense. Without clickwrap, we'd all have to paper or e-mail our agreement to the FSF, at least on the first occasion. 2. Click-wrap sales involve consideration. Taking my right to reverse engineer doesn't involve any consideration. It simply grabs from me. Is there any connection between the form of assent by the licensee and the character of the terms in the license? With IP licenses, different provision of the contract govern very different parts of IP. Some contracts try to regulate things that case law says the copyright holder can't regulate (fair use, some non-copyright use). Most of the provisions in IP contracts that I find objectionable look to be basically watered-down NDAs. I've always thought of NDAs as a mechanism to avoid publication --- except that the latest Redmond-ware _is_ published, so why the anti-publication terms in the contract? OK, that was a rhetorical question, but I don't see how or why a copyright owner gets to decide that they don't like the idea of publication that comes with copyright. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 12:33:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14917 for dvd-discuss-outgoing; Fri, 28 Apr 2000 12:33:14 -0400 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 MAA14914 for ; Fri, 28 Apr 2000 12:33:13 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA30788 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 11:33:35 -0500 Date: Fri, 28 Apr 2000 11:33:35 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428113335.A30751@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <3909A024.76EEA614@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 10:28:52AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 10:28:52AM -0400, Ian Hay wrote: > > Bryan - I know this is still a controversial matter in some people's > eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue > to be essentially over. They are valid. Period. Whatever controversy > was raised in regards to shrinkwrap licenses (i.e. physical boxes that > contain software, notice of an agreement printed on the outside, text of > the agreement inside, plus an essential right to return for a full > refund after having a chance to read the agreement) was settled to the > satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD > Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) By this argument, wouldn't the following be true: By way of shrinkwrap or clickwrap "contracts", * Every software publisher can prevent reverse-engineering of its products * Every software publisher can prevent unauthorized benchmarking of its products Taking this to extremes, * Every _product_ manufacturer can prevent reverse engineering of its products, negative reviews, or any other action not in the manufacturers' interest. General Motors could put window stickers on all new cars saying purchaser agrees to only use GM-brand replacement parts or GM will reposess the vehicle. Clearly that's ridiculous; so how are courts supposed to tell "fair" shrink- or click-wrap contracts from "unfair" ones? I think evidence of intent to interfere with long standing consumer rights should weigh heavily in this decision; would a judge? > ...Consider what you LOSE: (a) the GPL is > unenforceable (it isn't even a clickwrap license: it is merely a > digitized version of the shrinkwrap license) This is a myth that was debunked long ago. The GPL offers _additional_ rights; shrinkwrap licenses _remove_ rights. If the GPL fails the author doesn't lose the right to enforce control over copying-- the licensee would lose the right to copy and modify (which can be quickly restored under a new contract). Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 12:38:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15583 for dvd-discuss-outgoing; Fri, 28 Apr 2000 12:38:54 -0400 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 MAA15580 for ; Fri, 28 Apr 2000 12:38:52 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA30807 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 11:39:14 -0500 Date: Fri, 28 Apr 2000 11:39:14 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428113914.A30802@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000428113335.A30751@thud.reric.net>; from eds@reric.net on Fri, Apr 28, 2000 at 11:33:35AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 11:33:35AM -0500, Eric Seppanen wrote: > > ...Consider what you LOSE: (a) the GPL is > > unenforceable (it isn't even a clickwrap license: it is merely a > > digitized version of the shrinkwrap license) > > This is a myth that was debunked long ago. The GPL offers _additional_ > rights; shrinkwrap licenses _remove_ rights. If the GPL fails the author > doesn't lose the right to enforce control over copying-- the licensee > would lose the right to copy and modify (which can be quickly restored > under a new contract). This is stated more clearly in a letter to LWN at http://lwn.net/2000/0113/backpage.phtml : Date: Sat, 8 Jan 2000 10:56:59 -0500 From: Andrew Pimlott To: letters@lwn.net Subject: How free software licences differ You article on "The DVD case as a test of shrink-wrap licensing" poses the issue, It will be interesting to consider how free software licenses differ legally - if at all - from the commercial shrink-wrap variety. The difference is simple. Under copyright law, you are granted a set of rights with respect to any piece of copyrighted material you receive. Commercial shrink-wrap licenses attempt to restrict you to fewer rights, while free software licenses grant you (strictly) more rights. That is why the GNU General Public License may openly state, You are not required to accept this License, since you have not signed it. If you don't accept the license, you may keep and use the material, you just get fewer rigths (the default set). Commercial software vendors, on the other hand, resort to tricking people into "accepting" their licenses. Stopping this would be an unmitigated blessing to free software. Andrew From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 12:52:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16961 for dvd-discuss-outgoing; Fri, 28 Apr 2000 12:52:22 -0400 Received: from dial220.roadrunner.com (sf-du220.cybermesa.com [209.12.75.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16958 for ; Fri, 28 Apr 2000 12:52:18 -0400 Received: (from paul@localhost) by dial220.roadrunner.com (8.8.7/8.8.7) id KAA01177 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 10:56:53 -0600 Date: Fri, 28 Apr 2000 10:56:50 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS(.exe) justification same as RIO's MP3 rip per Message-ID: <20000428105650.A837@localhost> References: <54A50136B6CAD3118FBD00C00D00DDEF0370D0@mits_perth_com1.mitswa.com.au> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF0370D0@mits_perth_com1.mitswa.com.au>; from andrew.mcmeikan@mitswa.com.au on Fri, Apr 28, 2000 at 04:39:33PM +0800 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu So far as I know, no 1201 case been decided yet, so no one has any legal precedent to follow. None the less, even as a non-lawyer I would be shocked if U.S. Courts interpreted the law the way I think you are describing it. On Fri, Apr 28, 2000 at 04:39:33PM +0800, McMeikan, Andrew wrote: > > Perhaps I am too paranoid in how I interpret it. > > I see it that if a technological measure exits then to do anything with the > data without some explicit authority impairs that measure and thus is > circumvention. You were talking about copy control. The technical measure in 1201(b) has to have something to do with "protects a right of a copyright owner." Also, "authority" of the copyright owner is not at issue in (b). The test is if the "measure" works, "in the ordinary course of its operation." Things like the data format on an audio CD don't fit at all with either of these requirements. > I see it that an application of information or a process of treatment is > certainly needed to get from a silver disc to music. But that process has nothing to do with copy control, so it doesn't fit into 1201(b). > By the compact disc logos on CD's and on players I can see that I am > authorized to play them that way. Private performance is a non-copyright use. Copyright status doesn't (shouldn't) affect my _right_ to privately listen to a work. > How can I be sure that authority exists to convert an audio CD to MP3 > format? "Authority" is at issue in 1201(a) and in section 106, the exclusive rights of a copyright owner. If you own a legitimate copy of a CD, then the Sony decision strongly suggests that you can "media-shift" for your own personal use. That probably makes an act of duplication fair use, so long as both the old and the new copy are for the use of the legitimate owner of the CD. There _might_ be some complexity here, but the function of the Rio has a good fit with legal precedent. > I just had a look through patents regarding CD players and they seem to use > the word process in there a lot. Yes, but not all processes are copy control measures. > To me it seems 1201(b)(3)(A,B) are definitions that rely almost solely on > authorization. No. The rely on the "ordinary course of its operation." > I could be just over paranoid, but the Super Audio Compact Disc **does** > have a protection feature (invisible second layer, for more data/security > watermark). Today that is a technological measure but when we all have > drives that can read the extra layer does that mean the copyright holders > "technological measure" does not exist anymore? I don't know about this technology, so I can't comment. > DVD encryption is just a way to control what brand player you can watch it > on. Yes. > If it was a true encrypted product you would purchase a 'dongle' just > like you do with expensive encrypted software. It is important to keep the terminology straight. I understand where you are coming from on this one --- the issues that are bothering you annoy me too. Part of the problem stems from the popular conception of "encryption" as meaning a solution to the privacy problem, versus the more technical meaning of a bag of techniques for particular tranformation of data. Examples of the real-world problems one can solve with encryption (where I'm using the technical meaning of the word) are: a. privacy, b. authentication, c. hashing, d. secret sharing. The biggest part of the problem is that DVDs on sale to the general public _have been published_. That's not one of a -> d, in fact it is the *opposite* of "a". That makes the public claims that CSS scrambling is a copy control measure a complete load of garbage. (I'm glossing over the issues of drive "authentication," and "digital is different," but I don't think those change the picture much.) > Since there is no dongle > sold with the DVD either there is never an authorization to play it, or > there is no encryption. It is only in NY and CT courts that the MPAA members claim that CSS is something other than copy control. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 13:02:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17833 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:02:41 -0400 Received: from dial85.roadrunner.com (dial85.cybermesa.com [209.12.75.85] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17830 for ; Fri, 28 Apr 2000 13:02:38 -0400 Received: (from paul@localhost) by dial85.roadrunner.com (8.8.7/8.8.7) id LAA01312 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 11:07:07 -0600 Date: Fri, 28 Apr 2000 11:07:06 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428110706.B837@localhost> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000428113335.A30751@thud.reric.net>; from eds@reric.net on Fri, Apr 28, 2000 at 11:33:35AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 11:33:35AM -0500, Eric Seppanen wrote: [ ... ] > I think evidence of intent to interfere with long standing consumer rights > should weigh heavily in this decision; would a judge? In many cases of software "licensing," I think there is an issue in addition to consumer rights: can a copyright owner basically right their own copyright statute? The authors of grabbing IP contracts want statutory standing to sue, damages, and all the rest. But the don't want to give up rights at publication necessary to meet the "progress" requirement (reverse engineering, et al.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 13:06:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18197 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:06:54 -0400 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 NAA18194 for ; Fri, 28 Apr 2000 13:06:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGVJ6>; Fri, 28 Apr 2000 10:08:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B09@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 10:08:02 -0700 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: greslin@linuxpower.org [mailto:greslin@linuxpower.org] > Sent: Thursday, April 27, 2000 4:40 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > > On Thu, Apr 27, 2000 at 03:41:17PM -0700, Richard Hartman wrote: > > > > > [ Rob said ] > > > > > > If DeCSS were written as a "necessary step" towards the > building of > > > a Linux DVD player, logic would indicate that a source > code release > > > would have come first. Especially in light of the argument that > > > DeCSS was part of an OS project and that the source code was so > > > fired-up important. > > > > > > How would you answer this issue in court? > > > > > > > You answered it yourself. If the initial release of DeCSS sources > > was accidental, perhaps Johansen would have eventually released > > the full player ... > > Then again, maybe he would have eventually printed it, stapled it to a > cat and took it on tour as modern art. There's no evidence > whatsoever, > AFAIK, that Johansen or MORE had any interest in writing a full DVD > player. Otoh, there is no requirement that he write a full DVD player. The law provides an exception for RE in order to create an interoperating program -- and DeCSS does interoperate w/ the DVD data. Nobody said nothin' 'bout requiring a complete cloning or competing product. > Plaintiff argument: "The MORE authors only released source code as an > afterthought; the obvious intended form of DeCSS was as a > binary. There > are several websites that explain in detail how to use this program to > copy a DVD to the Video CD format. There is no evidence > whatsoever that > the authors of DeCSS intended it to be a part of a later DVD player > project. It is clear that the intended purpose of this program is to > simplify the copying of DVD media." > > Plaintiff has evidence; defense doesn't. Plaintiff wins. There is no evidence that he did -not- intend to continue development before all the lawsuits started. Once they started he would, of course, have halted any plans he may have had in that direction until the issues were settled. Presumption of innocence: defendant wins. Also: in the open source context he need not have been the one to go on to produce the complete player. Haven't we already established cross-fertilization between LiViD and DeCSS? > > which would have had to incorporate the code > > that was developed in the "proof of concept" app DeCSS. Many people > > don't release their intermediate steps ... but if it got released > > by accident, well that shouldn't be any different than the release > > of the final product from a legal standpoint. If the code is legit > > it's legit. If it's not then the DVD player would be illegal. But > > we've determined that RE to create interoperating software is legit. > > We have? I wasn't aware that anyone on this list has settled this in > court. I know what the law says.. but you're generalizing a passage > in 17 USC 1201 that has lots of potential holes. > > Example: "creating interoperating software" ain't exactly > right. There's > this whole "programs with other programs" bit; that assumes > that a court > will accept that DVD media is a program. The "RE for interoperating > is legit!" thing isn't quite an axiom yet. The DVD contains data written by a program somewhere that encoded the VOB. DeCSS is an attempt to meaningfully read that data. This is called "interoperability". It is not the media that is a program (although there is an argument to be made for that as well) but there was a program that -produced- that media. Reading the media produced by another program is one way of interoperating with that program. > > The fact that DeCSS is not in and of itself a player does not > > negate the fact that a player requires code that does what > > DeCSS does -- which means that DeCSS (or something like it) > > would -have- to be developed as part of any development project > > aiming at a DVD player as it's end result. This legitimizes > > the DeCSS piece. > > You make it sound like the LiViD player has already been found to be > "non-circumventing". This hasn't been determined in court; just No ... it almost certainly -is- circumventing the "technological measure" ... but if it is circumventing, it is a legit circumvention by way of the RE exception: producing an interoperating program again. > because they've only said "DeCSS" doesn't mean that they're only > interested in Johansen's program. > > From what I understand, the plaintiffs are trying to revise > the original > injunctions to include *all* non-licensed CSS-emulating code under the > term "DeCSS". And -all- CSS-emulating code is covered by the RE exeption... > More than likely, by the time all this hits the courtroom "DeCSS" will > cover DeCSS, DoD and LiViD. There's no reason for the court > to deny the > request, in light of the technical facts. It would actually make less > sense to say that DeCSS is bad but DoD isn't. > > > > As for distribution in binary -- have you ever heard of a > > process called "beta testing"? > > Of course I have. And I don't believe there is any evidence that > Johansen and Friends intended DeCSS 1.0-1.2 to be beta releases. > Evidence is sort of important. That one was just a shot in the dark since I am not familiar w/ the release history of this thing. > > > If he wanted to find bugs > > in his decoder, the best way is to get a bunch of people > > to use it on DVDs all over and report any failures. Whether > > he released the source at that time or not is his own issue. > > Well, it's sort of relevant if you want to claim that it had > anything to do with LiViD. Typically you don't beta an OS project > by shipping out a sourceless binary. > > The problem with your argument is that you're building it on > hypotheticals rather than evidence. This was one of the mistakes > the EFF lawyers made in New York back in January. Only the part about the distribution of the binary -- again, I am not familiar w/ that part of things and wasn't ready for that line of argument. However, I believe I am on firmer ground with the reading of 1201(f)(2) and whether DeCSS is an interoperating program. -- -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 Apr 28 13:19:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19233 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:19:41 -0400 Received: from dial173.roadrunner.com (sf-du173.cybermesa.com [209.12.75.173]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA19230 for ; Fri, 28 Apr 2000 13:19:37 -0400 Received: (from paul@localhost) by dial173.roadrunner.com (8.8.7/8.8.7) id LAA01512 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 11:24:12 -0600 Date: Fri, 28 Apr 2000 11:24:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428112411.A1325@localhost> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <20000428113914.A30802@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000428113914.A30802@thud.reric.net>; from eds@reric.net on Fri, Apr 28, 2000 at 11:39:14AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Oh, this is sweeeet! On Fri, Apr 28, 2000 at 11:39:14AM -0500, Eric Seppanen wrote: > On Fri, Apr 28, 2000 at 11:33:35AM -0500, Eric Seppanen wrote: > > > ...Consider what you LOSE: (a) the GPL is > > > unenforceable (it isn't even a clickwrap license: it is merely a > > > digitized version of the shrinkwrap license) > > > > This is a myth that was debunked long ago. The GPL offers _additional_ > > rights; shrinkwrap licenses _remove_ rights. If the GPL fails the author > > doesn't lose the right to enforce control over copying-- the licensee > > would lose the right to copy and modify (which can be quickly restored > > under a new contract). I don't remember reading this the law review stuff on contract, but here's an interesting way to look at most ip/clickwrap licenses: After first sale, the copyright owner tries to revoke some of the "non-copyright" uses that accompany _publication_ via an adhesive license. Declining the license is effectively a retroactive denial that first sale occured. All this is after publication has already taken place. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 13:22:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19486 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:22:15 -0400 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 NAA19483 for ; Fri, 28 Apr 2000 13:22:14 -0400 Received: from sympatico.ca ([206.172.225.227]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000428172159.DBUA24624.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Fri, 28 Apr 2000 13:21:59 -0400 Message-ID: <3909C993.9490C28A@sympatico.ca> Date: Fri, 28 Apr 2000 13:25:39 -0400 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] Sega Question References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@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 Fri, Apr 28, 2000 at 10:28:52AM -0400, Ian Hay wrote: > > > > Bryan - I know this is still a controversial matter in some people's > > eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue > > to be essentially over. They are valid. Period. Whatever controversy > > was raised in regards to shrinkwrap licenses (i.e. physical boxes that > > contain software, notice of an agreement printed on the outside, text of > > the agreement inside, plus an essential right to return for a full > > refund after having a chance to read the agreement) was settled to the > > satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD > > Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) > > By this argument, wouldn't the following be true: > > By way of shrinkwrap or clickwrap "contracts", > * Every software publisher can prevent reverse-engineering of its products No - again, the issue of whether a PARTICULAR provision in a contract is a totally different issue from whether clickwrap licenses as a whole are valid. AGAIN: there may be very good foundation for arguing that prohibitions against RE'ing are unenforceable: one of them is NOT that clickwrap licenses are invalid as a whole. > * Every software publisher can prevent unauthorized benchmarking of its > products A lot of software agreements, particularly Beta licenses, purport to do exactly this. I have no position on whether they are independently enforceable or not, but again this has nothing to do with the legality of clickwrap licenses per se. > Clearly that's ridiculous; so how are courts supposed to tell "fair" > shrink- or click-wrap contracts from "unfair" ones? AGAIN: -please- separate out in your mind the validity of a -contract- and the validity of a -contractual provision-. > I think evidence of intent to interfere with long standing consumer rights > should weigh heavily in this decision; would a judge? > > > ...Consider what you LOSE: (a) the GPL is > > unenforceable (it isn't even a clickwrap license: it is merely a > > digitized version of the shrinkwrap license) > > This is a myth that was debunked long ago. The GPL offers _additional_ > rights; shrinkwrap licenses _remove_ rights. If the GPL fails the author > doesn't lose the right to enforce control over copying-- the licensee > would lose the right to copy and modify (which can be quickly restored > under a new contract). Whether the GPL fails to the disadvantage of the licensor or the licensee is not the issue - and the fact that it is only unenforceable with respect to the added rights of the licensee is hardly a debunking of a myth. I have read such positions before (i.e. the "GPL adds rights" argument) - and it is certainly technically correct: but completely evades the problem. The whole point of such a license is that the licensee have some certainty about what their rights are and are not. If the certainty of their rights are that in the event that the GPL is rendered unenforceable because it came in the form of a shrinkwrap license, they can simply expect non-enforcement of the default rights of a copyright holder, or a private contract confirming those additional rights, then the license wasn't worth its salt in the first place. Put it this way: if the granting of additional rights embodied in the GPL is unenforceable when transmitted in the form of a shrinkwrap license, then the GPL -ceases- to be an contractually valid statement of the rights of the licensee, and is left as merely a legally unenforceable promise on the part of the licensor -not- to exersize their legally enforceable rights under Title 17. The difference may not matter much to you or me personally, but I -promise- you that it matters to the increasing numbers of commercial enterprises distributing and using GPL'ed software, who expect a higher level of legal certainty about their relationships with the licensors, and are not willing to simply accept the good will of the individual software developer in the absence of a real contract. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 13:27:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20050 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:27:41 -0400 Received: from dial67.roadrunner.com (sf-du67.cybermesa.com [209.12.75.67]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA20047 for ; Fri, 28 Apr 2000 13:27:38 -0400 Received: (from paul@localhost) by dial67.roadrunner.com (8.8.7/8.8.7) id LAA01750 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 11:32:09 -0600 Date: Fri, 28 Apr 2000 11:32:08 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428113208.A1531@localhost> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <20000428110706.B837@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000428110706.B837@localhost>; from fenimore@roadrunner.com on Fri, Apr 28, 2000 at 11:07:06AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 11:07:06AM -0600, Paul Fenimore wrote: > to consumer rights: can a copyright owner basically right their own Hmmm, more coffee --- how about "write" their own? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 13:39:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21019 for dvd-discuss-outgoing; Fri, 28 Apr 2000 13:39:01 -0400 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 NAA21016 for ; Fri, 28 Apr 2000 13:39:01 -0400 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 NAA28538 for ; Fri, 28 Apr 2000 13:39:24 -0400 (EDT) Message-Id: <4.2.2.20000428111402.00d39320@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 28 Apr 2000 13:39:16 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Sega Question In-Reply-To: <3909A024.76EEA614@sympatico.ca> References: <20000428051955.13222.qmail@web513.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 10:28 AM 4/28/00 -0400, ian.hay@sympatico.ca wrote: >Bryan - I know this is still a controversial matter in some people's >eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue >to be essentially over. They are valid. Period. Whatever controversy >was raised in regards to shrinkwrap licenses (i.e. physical boxes that >contain software, notice of an agreement printed on the outside, text of >the agreement inside, plus an essential right to return for a full >refund after having a chance to read the agreement) was settled to the >satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD >Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) However, the ProCD case wasn't only about whether you could sign a contract by clicking on a button or tearing a box and continuing to use its contents, but about whether private parties could, by contract, preempt the terms of copyright law. While it may be uncontroversial for the holding that proceeding past a pop-up license agreement can sign a valid contract, I don't think we can say ProCD is the final word on what a publisher can put into that contract. We don't need to follow your parade of horribles on the GPL to disagree with the second part. There's still room for debate on what terms are acceptable in a click-wrap license, and the standard may have something to do with the manner of acceptance. Licensing could entirely swallow copyright law if publishers were permitted to include any terms at all in their contracts (by opening this book, you agree not to write a negative review, quote even a sentence, speak unfavorably about the author, disclose the ending, etc.) If A doesn't have a right to prevent reverse engineering of his product, there's serious question whether he can craft an agreement with B that prevents B from reverse engineering. The question whether a click-wrap can protect a trade secret seems to me even further from resolved. Is it logical that something put in the hands of X thousand people is still a trade secret because all of them signed purchase contracts not to look at it? --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:00:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23862 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:00:43 -0400 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 OAA23859 for ; Fri, 28 Apr 2000 14:00:40 -0400 Received: from sympatico.ca (ppp2044.on.bellglobal.com [206.172.235.124]) by smtp13.bellglobal.com (8.8.5/8.8.5) with ESMTP id OAA20301 for ; Fri, 28 Apr 2000 14:04:31 -0400 (EDT) Message-ID: <3909D2B8.C3DD9BE1@sympatico.ca> Date: Fri, 28 Apr 2000 14:04:40 -0400 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] Sega Question References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <4.2.2.20000428111402.00d39320@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: > Licensing could entirely swallow copyright law if publishers were permitted > to include any terms at all in their contracts (by opening this book, you > agree not to write a negative review, quote even a sentence, speak > unfavorably about the author, disclose the ending, etc.) > If A doesn't have a right to prevent reverse engineering of his product, > there's serious question whether he can craft an agreement with B that > prevents B from reverse engineering. > > The question whether a click-wrap can protect a trade secret seems to me > even further from resolved. Is it logical that something put in the hands > of X thousand people is still a trade secret because all of them signed > purchase contracts not to look at it? I agree with you completely, and I've made the distinction between contractual validity and the validity of a particular prohibitive provision in a contract 5 or 6 times in this thread. I fail to see, however, whether the validity of a clause prohibiting RE (or protecting a trade secret by other means) turns on whether or not the clause was contained in a shrinkwrap/clickwrap license. It seems to me that the issue of the validity of such a prohibition would -remain- an equally contestable point in -any- consumer-goods contract. The -issue- is no longer shrinkwrap/clickwrap licenses. The issue is whether anti-RE clauses are valid. I took up this point recently with regard to reverse engineering in Canadian case law. Needless to say, as far as I can tell, no Canadian court has ever considered the issue of RE'ing of computer software. There are plenty of cases that say: (1) that a former employee may not use the excuse of the -possibility- of RE'ing by a third party to erase his duty to preserve a trade secret; and (2) a third party has the right to reverse engineer to independently discover a trade secret. The issue then becomes: is the licensee of a consumer software license in the ordinary course of business (1) more analogous to the former employee (by virtue of having assented to a license agreement) or (2) is he analogous to the independent third party (by virtue of this simply being a consumer contract in the ordinary course of business, where no special relationship analagous to an employee can be said to have been created). Obvously, you, me, and everyone else in this thread would argue the latter. I would also argue, along with you, that this is an unresolved issue here and in the US. I simply don't agree that it has -anything- to do with the very separate issue of the validity of shrinkwrap/clickwrap licenses. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:01:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24064 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:01:54 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA24060 for ; Fri, 28 Apr 2000 14:01:53 -0400 Message-ID: <20000428172431.23133.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 28 Apr 2000 10:24:31 PDT Date: Fri, 28 Apr 2000 10:24:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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: > > Bryan - I know this is still a controversial matter in some people's > eyes, but I personally consider the 'clickwrap/shrinkwrap' license > issue to be essentially over. They are valid. Period. Whatever > controversy was raised in regards to shrinkwrap licenses (i.e. > physical boxes that contain software, notice of an agreement > printed on the outside, text of the agreement inside, plus an > essential right to return for a full refund after having a chance > to read the agreement) was settled to the satisfaction of many in > the ProCD case. (Find on Jurisline: Pro-CD Incorporated v. > Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) I am very familier with ProCD. It's linked, with a lot of other relevent cases and articles on my EFF Question 6 page: http://bioinformatics.ucsf.edu/bwtaylor/dvd/EFF_questions/Q6_clickwrap/ The articles include a recent and lengthy "Metamorphosis of Contract into Expand" article by David Nimmer, et. a., lambasting Easterbrook's reasoning in ProCD. ProCD absolutely does not settle the issue. In fact it creates a direct conflict with Step-Saver v. WYSE, which is a 3rd Circuit Appeals court opinion on the issue of contract formation. It also appears to create a direct conflict with Vault v. Quaid (5th Circuit Appeals) on the issue of premption. ProCD is not just maligned by Nimmer. Here's what federal district judge J. Thomas Greene wrote as he ruled the other way in the case Novell v. NTC 25 F.Supp. 2d 1218 (D. UT 1997): Most courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. Step-Saver, 939 F.2d 91; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988); Rich, Mass Market Software and the Shrinkwrap License, 23 Colo. Law. 1321.17 A minority of courts have determined that the shrinkwrap license is valid and enforceable. See, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996) ..." The 9th Circuit Court of Appeals endorsed Step-Saver, when they followed its reasoning in a bankruptcy case Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999). A 9th Circuit District Court followed Step-Saver in Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993). Of course, all of these cases react to the 'contract' as part or modification of the contract of sale. They are reasoning under the context of the Uniform Commercial Code Article 2, which governs contracts of sale. In XingDVD's case, the retailer is almost certainly distinct from Xing, so Xing isn't a party to the contract of sale, and the contract might not even get the benefit of the UCC's contract-formation-friendly provisions and instead have to find justification under the common law of contracts. This alone would be enough to distinguish ProCD. > Well, contracts of adhesion are enforceable. Period. Have been for > a long time. -Provided- they meet the legality of contracts in > general, and are not unconscionable. I've collected some of the cases (going both ways) on adhesion contracts relevant to CA law and put them at: http://bioinformatics.ucsf.edu/bwtaylor/dvd/cases/summaries/Adhesion_Contracts.html My summary of the law of adhesion contracts was taken from the first case there: American Bankers Mortg. Co. v. Federal Home Loan 75 F.3d 1401 (9th Cir. 1996). Some adhesive contracts are valid, some are not. A good data point is Fuentes v. Shevin 407 U.S. 67 (U.S. Supreme Court 1972). > "Clickwrap" licenses are distinct from shrinkwrap licenses only in > the second respect: provided they are designed properly, the buyer is > forced to read, or at least scroll through, the agreement prior to > installing the software. Some do this, many don't. Only Xing's EULA matters and I don't know which kind it is. There's also no evidence it actually got to this point, or that our anonymous reverse engineer clicked "I agree". > Furthermore - let me point out that NO court in the year 2000 is > going to render clickwrap licenses unenforceable in the > E-commerce age, simply because they are clickwrap licenses. This is the strongest case I could find in your direction, though I think it's a good one: Hotmail Corp. v. Van $ Money Pie, 47 U.S.P.Q.2d 1020 (N.D. Cal. 1998) upheld Hotmail's signup agreement terms banning spam. In this case, the act of clicking "I agree" is _sent_ to Hotmail. The contract begins only because they _react_ to your express communication of assent. The issues are highly nuanced - they depend on the terms, the parties, when and how assent is created. Blanket statements like "all clickwrap licences are enforceable" are non-starters. > Billions of dollars in the US and > international markets are depending on the enforceability of these > licenses. I agree that in some case law, there was a trend to treat > these as unenforceable, but since ProCD, that trend has been > decidedly reversed. It is more than "some case law" and it continues today, and ProCD has not "decidedly reversed" the situation, as judge Greeene above noted. I do not think that eCommerce will fail if a minimal criteria for manifest assent and reasonableness in contracts is upheld, and neither do the judges who have cited to Step-Saver after ProCD. On the other hand, allowing use of the product to create lopsided contracts that exchange the rights of fair use and free speech in return for nothing would surely be a worse result than the worst the DMCA could ever dream up. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:13:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25644 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:13:42 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA25641 for ; Fri, 28 Apr 2000 14:13:40 -0400 Message-ID: <20000428173652.25156.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 28 Apr 2000 10:36:52 PDT Date: Fri, 28 Apr 2000 10:36:52 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Sega Question 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: > You do bring up a really good point about the GPL being at risk if > the shrink/click wrap license is > brought into question. It would be rather nasty if every license > agreement in the world could be violated by children. The GPL is not at risk. In both cases, Federal copyright law governs as the "gap filler" in the absense of a valid contract. If you don't agree to the GPL you are prohibited by law from distributing modified code. In the absence of an enforcable contract with Xing, then you are expressly allowed by 17 USC 117 to install the software and you expressely allowed by the First Amendment, 17 USC 102(b), 17 USC 1201(f), and a whole lot of caselaw to reverse engineer. Moreover, in the EU, Norway, and at least the 5th Circuit (see Vault v. Quaid) - no contract can exist that gives up reverse engineering. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:16:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25870 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:16:07 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25867 for ; Fri, 28 Apr 2000 14:16:06 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id OAA18276 for ; Fri, 28 Apr 2000 14:18:27 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Fri, 28 Apr 2000 13:13:24 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Fri, 28 Apr 2000 14:13:02 -0400 From: "Martin Garbus" To: , Subject: Re: [dvd-discuss] NY Times Article about the case 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 OAA25868 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 >>> Bryan Taylor 04/28/00 11:44AM >>> A while back I traded emails with Garbus, and eventually even spoke with him on the phone, briefly. He suggested that he would be amenable to this forum submitting an amicus brief if the case goes to trial. He definitely seems like a heavy-weight. I'm very glad he's on board for 2600. It's interesting that the NYT linked to the embattled mirror list. --- sam th wrote: > At this link > > http://nytimes.com/library/tech/yr/mo/cyber/cyberlaw/28law.html > > there is an interesting article, focusing mostly on Garbus (the 2600 > lawyer). Fairly evenhanded. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:30:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA28066 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:30:05 -0400 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 OAA28063 for ; Fri, 28 Apr 2000 14:30:04 -0400 Received: from sympatico.ca (ppp2044.on.bellglobal.com [206.172.235.124]) by smtp11.bellglobal.com (8.8.5/8.8.5) with ESMTP id OAA26061 for ; Fri, 28 Apr 2000 14:36:11 -0400 (EDT) Message-ID: <3909D993.218E4804@sympatico.ca> Date: Fri, 28 Apr 2000 14:33:55 -0400 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] NY Times Article about the case 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 Martin Garbus [allegedly] wrote: > > pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 Is this a bad joke? I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 14:45:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29952 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:45:26 -0400 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 OAA29948 for ; Fri, 28 Apr 2000 14:45:25 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGVPK>; Fri, 28 Apr 2000 11:46:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B0A@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 11:46:28 -0700 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: greslin@linuxpower.org [SMTP:greslin@linuxpower.org] > Sent: Thursday, April 27, 2000 5:40 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > On Thu, Apr 27, 2000 at 06:59:31PM -0500, sparky wrote: > > Rob wrote: > > > > > > If DeCSS were written as a "necessary step" towards the building of > > > a Linux DVD player, logic would indicate that a source code release > > > would have come first. Especially in light of the argument that > > > DeCSS was part of an OS project and that the source code was so > > > fired-up important. > > > > Hasn't JJ said that he intended DeCSS as work toward the creation of a > DVD > > player on unsupported platforms? Is this not borne out by the fact that > he > > gave the code to a project trying to do exactly that? > > Not exactly. Jon said at several points (one of which was in private > correspondence with yours truly) that his intent was to bring DVD > playability > to the unsupported platforms, mainly FreeBSD and Linux. > You mean, his intent was to establish interoperability with FreeBSD and Linux? > He's never claimed > that DeCSS was simply going to be an intermediary step towards writing a > DVD player. A thin line, but it's there. > > AFAIK he never claimed to be writing a DVD player. > A thin line of what? The law dows not require anybody to be "writing a DVD player". What does it matter that he never claimed to be writing one. He -was- writing software that enabled interoperability between the DVD and Linux/FreeBSD -- a capability that did not exist before DeCSS. > > I think that the view here of "necessary step" is too narrow; you mean > that > > "necessary" means "necessary for a specific project" while in fact there > is > > ample reason to create this tool separately for *any number* of > projects. > > > > Also, to the extent that a "source code release" was a first step toward > the > > building of a Linux player - isn't that step evident in JJ's giving the > code > > to Derek? > > *Maybe*. > > It would be a lot more solid if the binary hadn't been distributed before > this > point. The fact that the binary had been released first can easily be > used > to indicate that LiViD involvement was an afterthought. > Supposition, your honor. The -fact- is that he did give the code to the LiViD project. Moreover, it does not matter whether he distributed the code or not. The binary tool was one that enabled people to do what they could not do before -- read DVDs on their Linux systems. That they had to take additional steps to play the resulting data is immaterial. The Linux community is one where people are very much "hands on" and would not balk at putting together a tool chain -- one element of which would be DeCSS -- to accomplish this purpose. The technique of creating chains of tools, each doing one thing to the data stream, is common in the UNIX world. > Compare DeCSS with DoD. They both do basically the same job, built around > the Xing key. They both hit the airwaves in binary form around roughly > the > same time. The difference between the two is that the authors of DeCSS > chose *later* to give the code to the LiViD group. Would anyone in this > list accept the banning of DoD while allowing DeCSS? Why? > > Knowing nothing of DoD, I can not say that I would accept it's banning. This is practically the first mention of DoD I have heard here ... why would you say that this anyone in this list would accept this? > One other point.. the public statements made by Jon came after the legal > fallout began. This was a major sticking point for me a while ago, > because it > seemed to me that Jon might have said "oh shit, better hide behind the > Linux > story". There didn't seem to be any pro-OS or pro-LiViD association > before > the code was given to Derek. > > I personally believe his story, after contacting him myself. He sounds > completely plausible and his story jibes with Derek's (whom I've also > corresponded with). > > But short of dragging him into a U.S. court (remember that Jon lives in > Norway > and Derek is a Brit) and putting him under oath, there's no way to counter > the > argument that he had every motivation to be less than truthful about > MORE's > intents. Any judge would listen to this argument, drop it entirely as > hearsay > and rule based on the evidence. > ANY argument about his intentions -- positive OR negative -- would be entirely hearsay and supposition. > And, unfortunately, the evidence trail seems to start at the binary-only > release of DeCSS. > That is evidence of the release of DeCSS, not intent. > > (Isn't all this first name stuff and use of initials cute? Aw.) I > > think you mean that for DeCSS to be used in *any* project, the source of > > that would have to be first publicly released. Was it never? Even if it > was > > never, in the context of an RE effort (and I'm not referring to a > > specific one, but to RE in general, for which DeCSS was intended), is > the > > release of source different in meaning from a release of the binary? The > > binary is meant to be used after all, and if you are distributing > source, > > others will compile it and use the compiled exe (or whatever it is after > > it's compiled). > > It's important if we're arguing that DeCSS was part of an open source > project > and innocently was not meant as a ripping tool. It's an indicator of > intent. > By there being a binary release first, it's harder to claim that the > intent > was to provide an open source player. What would have made more sense > would > be a simultaneous release of binary and source. ("this is what we did and > this is how we did it") > > As it stands, it appears that the original intent behind the release of > DeCSS was to enable something to be done, but not to explain how. > And your point would be? The DVD manufacturers have never explained how, have they? What does explaining how have to do with anything? DeCSS is an enabling technology. Like many enabling technologies, what is done with it by the end user can be either good or bad. -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 Apr 28 15:37:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02313 for dvd-discuss-outgoing; Fri, 28 Apr 2000 15:37:35 -0400 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 PAA02310 for ; Fri, 28 Apr 2000 15:37:34 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA31394 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 14:37:56 -0500 Date: Fri, 28 Apr 2000 14:37:56 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Message-ID: <20000428143756.A31371@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <3909D993.218E4804@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <3909D993.218E4804@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 02:33:55PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > Martin Garbus [allegedly] wrote: > > > > pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 > > Is this a bad joke? > > I. Gee, that's not very polite. The headers look legitimate to me. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 15:51:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03891 for dvd-discuss-outgoing; Fri, 28 Apr 2000 15:51:15 -0400 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 PAA03888 for ; Fri, 28 Apr 2000 15:51:14 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA31428 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 14:51:34 -0500 Date: Fri, 28 Apr 2000 14:51:34 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428145134.B31371@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <3909C993.9490C28A@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <3909C993.9490C28A@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 01:25:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 01:25:39PM -0400, Ian Hay wrote: > > > > > ...Consider what you LOSE: (a) the GPL is > > > unenforceable (it isn't even a clickwrap license: it is merely a > > > digitized version of the shrinkwrap license) > > > > This is a myth that was debunked long ago. The GPL offers _additional_ > > rights; shrinkwrap licenses _remove_ rights. If the GPL fails the author > > doesn't lose the right to enforce control over copying-- the licensee > > would lose the right to copy and modify (which can be quickly restored > > under a new contract). > > Whether the GPL fails to the disadvantage of the licensor or the > licensee is not the issue - and the fact that it is only unenforceable > with respect to the added rights of the licensee is hardly a debunking > of a myth. > GPL is unenforceable when transmitted in the form of a shrinkwrap > license, then the GPL -ceases- to be an contractually valid statement of > the rights of the licensee, and is left as merely a legally > unenforceable promise on the part of the licensor -not- to exersize > their legally enforceable rights under Title 17. The difference may not > matter much to you or me personally, but I -promise- you that it matters > to the increasing numbers of commercial enterprises distributing and > using GPL'ed software, who expect a higher level of legal certainty > about their relationships with the licensors, and are not willing to > simply accept the good will of the individual software developer in the > absence of a real contract. OK, I understand what you're saying. It would probably have been better for you to have used a phrase other than "the GPL is unenforceable" which is typically used to describe a situation where the licensee would be able to distribute modified software, without distributing source code. However, I still question whether voiding shrink-wrap agreements voids the GPL. The difference seems to me that shrink-wrap agreements state that the LICENSEE agrees to give up some right, while the GPL states that the LICENSOR agrees to give up some rights. If I were to successfully attack shrink-wrap agreements on the ground that contracts can't be dictated to the purchaser after sale, that attack doesn't work on the GPL because the party giving something up clearly *knew* before the sale they were contracting something away, and exactly what it was. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 15:53:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04037 for dvd-discuss-outgoing; Fri, 28 Apr 2000 15:53:00 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04034 for ; Fri, 28 Apr 2000 15:52:59 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12lGp9-0007e9-00; Fri, 28 Apr 2000 12:53:15 -0700 Date: Fri, 28 Apr 2000 12:53:15 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Message-ID: <20000428125315.V13889@zork.net> 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 mgarbus@FGKS.COM on Fri, Apr 28, 2000 at 02:13:02PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Martin Garbus writes: > We are now facing a linking motion.it is returnable in May. Is somebody managing to get documents to the EFF so they can be published on their web site? -- 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 Apr 28 15:59:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04996 for dvd-discuss-outgoing; Fri, 28 Apr 2000 15:59:57 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04993 for ; Fri, 28 Apr 2000 15:59:56 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12lGvz-0007eX-00; Fri, 28 Apr 2000 13:00:19 -0700 Date: Fri, 28 Apr 2000 13:00:19 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428130019.X13889@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <3909C993.9490C28A@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <3909C993.9490C28A@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 01:25:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ian Hay writes: > Put it this way: if the granting of additional rights embodied in the > GPL is unenforceable when transmitted in the form of a shrinkwrap > license, then the GPL -ceases- to be an contractually valid statement of > the rights of the licensee, and is left as merely a legally > unenforceable promise on the part of the licensor -not- to exersize > their legally enforceable rights under Title 17. The difference may not > matter much to you or me personally, but I -promise- you that it matters > to the increasing numbers of commercial enterprises distributing and > using GPL'ed software, who expect a higher level of legal certainty > about their relationships with the licensors, and are not willing to > simply accept the good will of the individual software developer in the > absence of a real contract. Would it do any good if people releasing code under the GPL turned that promise not to exercise rights under 17 USC into a contract with the FSF not to exercise those rights? I.e. "In exchange for from the FSF, I won't ever sue anyone for copyright infringement who does something with Gnomovision which would be permitted by the GPL". This is problematic, but possibly useful. (Note that it's _not_ a copyright assignment to the FSF.) -- 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 Apr 28 16:02:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05348 for dvd-discuss-outgoing; Fri, 28 Apr 2000 16:02:16 -0400 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 QAA05290 for ; Fri, 28 Apr 2000 16:02:14 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id PAA31460 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 15:02:34 -0500 Date: Fri, 28 Apr 2000 15:02:34 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428150234.C31371@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <3909C993.9490C28A@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <3909C993.9490C28A@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 01:25:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 01:25:39PM -0400, Ian Hay wrote: I'm snipping a lot of text; it's not because I'm trying to ignore your good points, but rather because I'm trying to understand what you're saying by picking a single example. > > * Every software publisher can prevent unauthorized benchmarking of its > > products > > A lot of software agreements, particularly Beta licenses, purport to do > exactly this. I have no position on whether they are independently > enforceable or not, but again this has nothing to do with the legality > of clickwrap licenses per se. I think the argument over the legitimacy of shrink-wrap or click-wrap licenses is whether the same things can be contracted away as a real negotiated contract. Is this correct? Now, assume for the sake of argument that it would be legal and enforceable for someone to contract away the right to publish software benchmarks, using a negotiated contract. (IANAL so I have no idea.) A lot of people, myself included, would say that it's ridiculous to apply that limitation by way of a paper contract found in the box after sale (or in a dialog during software install), and any attempt at this should be found unenforceable. Isn't that a direct attack on the enforceability of shrink/click-wrap contracts? Maybe the example (publishing benchmarks) I chose is bad but there has to be examples of things enforceable by negotiated contract that seem unfair when included in shrinkwrap contracts. Wouldn't those be examples that shrink-wrap agreements lack the weight of negotiated contract? Sorry, don't mean to be a pain but I'm not following your argument. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 16:46:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08889 for dvd-discuss-outgoing; Fri, 28 Apr 2000 16:46:31 -0400 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 QAA08886 for ; Fri, 28 Apr 2000 16:46:28 -0400 Received: (from paul@localhost) by dial124.roadrunner.com (8.8.7/8.8.7) id OAA03338 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 14:50:33 -0600 Date: Fri, 28 Apr 2000 14:50:32 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Message-ID: <20000428145031.A2031@localhost> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> <3909A024.76EEA614@sympatico.ca> <20000428113335.A30751@thud.reric.net> <3909C993.9490C28A@sympatico.ca> <20000428130019.X13889@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000428130019.X13889@zork.net>; from schoen@loyalty.org on Fri, Apr 28, 2000 at 01:00:19PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 01:00:19PM -0700, Seth David Schoen wrote: > Ian Hay writes: > > > Put it this way: if the granting of additional rights embodied in the > > GPL is unenforceable when transmitted in the form of a shrinkwrap > > license, then the GPL -ceases- to be an contractually valid statement of > > the rights of the licensee, and is left as merely a legally > > unenforceable promise on the part of the licensor -not- to exersize > > their legally enforceable rights under Title 17. The difference may not > > matter much to you or me personally, but I -promise- you that it matters > > to the increasing numbers of commercial enterprises distributing and > > using GPL'ed software, who expect a higher level of legal certainty > > about their relationships with the licensors, and are not willing to > > simply accept the good will of the individual software developer in the > > absence of a real contract. > > Would it do any good if people releasing code under the GPL turned > that promise not to exercise rights under 17 USC into a contract with > the FSF not to exercise those rights? > > I.e. "In exchange for from the FSF, I won't ever sue anyone > for copyright infringement who does something with Gnomovision which > would be permitted by the GPL". > > This is problematic, but possibly useful. (Note that it's _not_ a > copyright assignment to the FSF.) I can see some difficulties with this: 1. Copyright infringement is now also a criminal matter, so in some cases there is also the issue of whether the federal D.A. feels like prosecuting for criminal violations. 2. Whether criminal or civil, the existence of a violation hinges on whether the person was "authorized" to do things in 106. A promise not to exercise (the non-106) statutory remedies doesn't give my non-lawyer self warm fuzzy feelings. I was thinking along these lines too, and one solution I came up with was to explicitly put old versions of GPL software in the public domain. Then we all have a (long term) back-stop if the contract fails and there is some disaster with the copyright holder. "Non-cooperators" don't get much of a competitive advantage on the new software. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 17:17:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11672 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:17:53 -0400 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 RAA11669 for ; Fri, 28 Apr 2000 17:17:51 -0400 Received: from localhost (wolfgang@localhost) by train.sdrm.org (8.9.3/8.9.3) with ESMTP id OAA14914; Fri, 28 Apr 2000 14:17:41 -0700 Date: Fri, 28 Apr 2000 14:17:41 -0700 (PDT) From: Lewis E Wolfgang To: dvd-discuss@eon.law.harvard.edu cc: bryan_w_taylor@yahoo.com Subject: Re: [dvd-discuss] NY Times Article about the case 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, 28 Apr 2000, Martin Garbus wrote: > pleasae do submiyt amicus brief.We are now facing a linking motion. > it is returnable in May.I would like you to write kaplan anad ask for > permission to file.do it NOW.call me at 8265522(office) 7341096 home > both at 212 I would be inclined to think that this is a bogus message. The raw headers indicate that the message originated at IP address 131.44.121.4. DNS reports this as fsgate03.randolph.af.mil. Is Martin Garbus in the US Air Force? Regards, Lew Wolfgang From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 17:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12835 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:29:19 -0400 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 RAA12832 for ; Fri, 28 Apr 2000 17:29:18 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGVWR>; Fri, 28 Apr 2000 14:30:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B0C@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Sega Question Date: Fri, 28 Apr 2000 14:30:26 -0700 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 > -----Original Message----- > From: Steve Stearns [SMTP:sterno@bigbrother.net] > Sent: Friday, April 28, 2000 7:39 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Sega Question > > On Fri, 28 Apr 2000, Ian Hay wrote: > > > Bryan - I know this is still a controversial matter in some people's > > eyes, but I personally consider the 'clickwrap/shrinkwrap' license issue > > to be essentially over. They are valid. Period. Whatever controversy > > was raised in regards to shrinkwrap licenses (i.e. physical boxes that > > contain software, notice of an agreement printed on the outside, text of > > the agreement inside, plus an essential right to return for a full > > refund after having a chance to read the agreement) was settled to the > > satisfaction of many in the ProCD case. (Find on Jurisline: Pro-CD > > Incorporated v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)) > > If a shrink wrap agreement is acceptable as long as the terms and > implementation of the agreement conform to contract law, can a shrink wrap > license be agreed to by a minor? Certainly a minor cannot enter a legal > contract without the consent of a parent/guardian in all other instances > (if I'm wrong on this, I'll shut up now :). So, can a minor actually be > held to the terms of a shrink wrap license? > > Where that puts this, I don't know. You do bring up a really good point > about the GPL being at risk if the shrink/click wrap license is brought > into question. It would be rather nasty if every license agreement in the > world could be violated by children. > > > I am not so sure about this. The GPL is essentailly a copyright license statement, not a contract. Copyright statements to place terms on distribution of copyrighted materials are common, and have been for a long time. Are they contracts? I dunno, but I don't think so. For example, on my web site I state the copies of the photos I post may be made for personal use only, but may not be redistributed or reposted w/o my permission. Is this a contract or a statement of my copyright terms? Is a statement of copyright terms a license, or something else? Questions, questions... -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 Apr 28 17:32:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13164 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:32:02 -0400 Received: from dial241.roadrunner.com (dial241.cybermesa.com [209.12.75.241] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13154 for ; Fri, 28 Apr 2000 17:31:59 -0400 Received: (from paul@localhost) by dial241.roadrunner.com (8.8.7/8.8.7) id PAA03866 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Apr 2000 15:36:37 -0600 Date: Fri, 28 Apr 2000 15:36:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Message-ID: <20000428153635.A3653@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 wolfgang@sdrm.org on Fri, Apr 28, 2000 at 02:17:41PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Apr 28, 2000 at 02:17:41PM -0700, Lewis E Wolfgang wrote: [ ... ] > I would be inclined to think that this is a bogus message. The > raw headers indicate that the message originated at IP address > 131.44.121.4. DNS reports this as fsgate03.randolph.af.mil. Is > Martin Garbus in the US Air Force? I don't see no 131.44.121.4 in these headers (I trimmed "Received" on the non-common part of the route to my machine): Received: from localhost (mail@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA25957; Fri, 28 Apr 2000 14:16:30 -0400 Received: by eon.law.harvard.edu (bulk_mailer v1.5); Fri, 28 Apr 2000 18:16:26 ++0000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25870 for dvd-discuss-outgoing; Fri, 28 Apr 2000 14:16:07 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25867 for ; Fri, 28 Apr 2000 14:16:06 -0400 Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP id OAA18276 for ; Fri, 28 Apr 2000 +14:18:27 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Fri, 28 Apr 2000 13:13:24 -0400 nslookup on the first two ip numbers fails, but that might just be their nameserver not advertizing "internal" ip numbers. You could try traceroute, but none of this is going to prove much --- the e-mail isn't signed and the mail server on ns.fgks.com is of unknown trustworthiness. The telephone number and a telephone book for NY are a good solution for the careful/paranoid. Look up Garbus' firm, and verify the tele number if you're inclined. That or you can trust DNS and get the tele number from their web page: Frankfurt, Garbus, Klein & Selz, P.C. Welcome to our website! Firm Profile | Attorney Bios | Practice Groups Contact Us | Search Our Site Frankfurt, Garbus, Klein & Selz, P.C. 488 Madison Avenue, New York, NY 10022 (212) 980-0120 © Copyright 2000 All Rights Reserved Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 17:45:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14365 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:45:31 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14362 for ; Fri, 28 Apr 2000 17:45:30 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12lIaA-0007s0-00; Fri, 28 Apr 2000 14:45:54 -0700 Date: Fri, 28 Apr 2000 14:45:54 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Message-ID: <20000428144554.B13889@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000428153635.A3653@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000428153635.A3653@localhost>; from fenimore@roadrunner.com on Fri, Apr 28, 2000 at 03:36:36PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > On Fri, Apr 28, 2000 at 02:17:41PM -0700, Lewis E Wolfgang wrote: > [ ... ] > > I would be inclined to think that this is a bogus message. The > > raw headers indicate that the message originated at IP address > > 131.44.121.4. DNS reports this as fsgate03.randolph.af.mil. Is > > Martin Garbus in the US Air Force? > > I don't see no 131.44.121.4 in these headers (I trimmed "Received" on > the non-common part of the route to my machine): > > [...] > Received: from ns.fgks.com ([208.130.17.130]) > by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25867 > for ; Fri, 28 Apr 2000 14:16:06 -0400 > Received: from FGKSGW (fgksgw.fgks.com [172.16.1.3]) > by ns.fgks.com (2.5 Build 2639 (Berkeley 8.8.6)/8.8.4) with SMTP > id OAA18276 for ; Fri, 28 Apr 2000 > +14:18:27 +0100 > [...] > > nslookup on the first two ip numbers fails, but that might just be their > nameserver not advertizing "internal" ip numbers. The second one is an RFC 1918 private address (the little-used private class B blocks). -- 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 Apr 28 17:52:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15149 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:52:30 -0400 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 RAA15146 for ; Fri, 28 Apr 2000 17:52:29 -0400 Received: from localhost (wolfgang@localhost) by train.sdrm.org (8.9.3/8.9.3) with ESMTP id OAA15128 for ; Fri, 28 Apr 2000 14:52:22 -0700 Date: Fri, 28 Apr 2000 14:52:22 -0700 (PDT) From: Lewis E Wolfgang To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case In-Reply-To: <20000428153635.A3653@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 Oops, Paul is correct. I was looking at the headers for Bryan Taylor's original report. My apologies! Regards, Lew Wolfgang On Fri, 28 Apr 2000, Paul Fenimore wrote: > On Fri, Apr 28, 2000 at 02:17:41PM -0700, Lewis E Wolfgang wrote: > [ ... ] > > I would be inclined to think that this is a bogus message. The > > raw headers indicate that the message originated at IP address > > 131.44.121.4. DNS reports this as fsgate03.randolph.af.mil. Is > > Martin Garbus in the US Air Force? > > I don't see no 131.44.121.4 in these headers (I trimmed "Received" on > the non-common part of the route to my machine): From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 17:53:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15213 for dvd-discuss-outgoing; Fri, 28 Apr 2000 17:53:18 -0400 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 RAA15202 for ; Fri, 28 Apr 2000 17:53:17 -0400 Received: from sympatico.ca ([206.172.224.182]) by tomts3-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000428215304.GWJN24624.tomts3-srv.bellnexxia.net@sympatico.ca> for ; Fri, 28 Apr 2000 17:53:04 -0400 Message-ID: <390A091F.C7EF8810@sympatico.ca> Date: Fri, 28 Apr 2000 17:56:47 -0400 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] NY Times Article about the case References: <3909D993.218E4804@sympatico.ca> <20000428143756.A31371@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 Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > > Martin Garbus [allegedly] wrote: > > > > > > pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 > > > > Is this a bad joke? > Gee, that's not very polite. The headers look legitimate to me. If it's truly Garbus, then my humble and sincere apologies - but my honest guess is that such a well-respected attorney has a better command of the language. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 18:03:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16289 for dvd-discuss-outgoing; Fri, 28 Apr 2000 18:03:28 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16286 for ; Fri, 28 Apr 2000 18:03:27 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id SAA04401 for ; Fri, 28 Apr 2000 18:03:20 -0400 Date: Fri, 28 Apr 2000 18:03:20 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case In-Reply-To: <390A091F.C7EF8810@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 It may not be a problem with the language so much as a problem with computers. This is about what I'd expect from several lawyers I know, because they never learned to type at all. (imagine one-finger hunt-and-peck typing, with no idea of what the shift or delete keys are for....) Though it _is_ a little surprising given who Garbus has as a client. On Fri, 28 Apr 2000, Ian Hay wrote: > Eric Seppanen wrote: > > > > On Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > > > Martin Garbus [allegedly] wrote: > > > > > > > > pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 > > > > > > Is this a bad joke? > > > Gee, that's not very polite. The headers look legitimate to me. > > If it's truly Garbus, then my humble and sincere apologies - but my > honest guess is that such a well-respected attorney has a better command > of the language. > > I. > > -- > ____ > | | Ian R. Hay > |____| Toronto, Canada > From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 18:06:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16661 for dvd-discuss-outgoing; Fri, 28 Apr 2000 18:06:55 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16658 for ; Fri, 28 Apr 2000 18:06:54 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12lIuo-0007ua-00; Fri, 28 Apr 2000 15:07:14 -0700 Date: Fri, 28 Apr 2000 15:07:14 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Message-ID: <20000428150714.D13889@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <3909D993.218E4804@sympatico.ca> <20000428143756.A31371@thud.reric.net> <390A091F.C7EF8810@sympatico.ca> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <390A091F.C7EF8810@sympatico.ca>; from ian.hay@sympatico.ca on Fri, Apr 28, 2000 at 05:56:47PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ian Hay writes: > Eric Seppanen wrote: > > > > On Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > > > Martin Garbus [allegedly] wrote: > > > > > > > > pleasae do submiyt amicus brief.We are now facing a linking motion.it is returnable in May.I would like you to write kaplan anad ask for permission to file.do it NOW.call me at 8265522(office) 7341096 home both at 212 > > > > > > Is this a bad joke? > > > Gee, that's not very polite. The headers look legitimate to me. > > If it's truly Garbus, then my humble and sincere apologies - but my > honest guess is that such a well-respected attorney has a better command > of the language. Some people type quickly because they are in a big rush. Dave Farber, a very well-respected professor and networking pioneer, comes to mind as someone whose list posts don't always have normal punctuation or capitalization. http://www.interesting-people.org/ -- 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 Apr 28 18:19:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18162 for dvd-discuss-outgoing; Fri, 28 Apr 2000 18:19:53 -0400 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 SAA18159 for ; Fri, 28 Apr 2000 18:19:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <27CCGVZX>; Fri, 28 Apr 2000 15:21:05 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1B0D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] NY Times Article about the case Date: Fri, 28 Apr 2000 15:20:58 -0700 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: Ian Hay [mailto:ian.hay@sympatico.ca] > Sent: Friday, April 28, 2000 2:57 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] NY Times Article about the case > > > Eric Seppanen wrote: > > > > On Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > > > Martin Garbus [allegedly] wrote: > > > > > > > > pleasae do submiyt amicus brief.We are now facing a > linking motion.it is returnable in May.I would like you to > write kaplan anad ask for permission to file.do it NOW.call > me at 8265522(office) 7341096 home both at 212 > > > > > > Is this a bad joke? > > > Gee, that's not very polite. The headers look legitimate to me. > > If it's truly Garbus, then my humble and sincere apologies - but my > honest guess is that such a well-respected attorney has a > better command > of the language. > True ... but possibly not a better command of the keyboard. Many high-powered people, especially if they rely upon secretaries, come off very poorly when they have to use the keyboard themselves. -- -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 Apr 28 18:33:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19366 for dvd-discuss-outgoing; Fri, 28 Apr 2000 18:33:52 -0400 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 SAA19350 for ; Fri, 28 Apr 2000 18:33:51 -0400 Received: from travel-net.com (trj161.travel-net.com [207.176.160.161]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id SAA17376 for ; Fri, 28 Apr 2000 18:35:25 -0400 Message-ID: <390A11DB.19079008@travel-net.com> Date: Fri, 28 Apr 2000 18:34:03 -0400 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] NY Times Article about the case References: <5A8391CA2D9ED311AFAA080009D982B10B1B0D@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 Y'know, it occurs to me that with all the energy expended on this thread this afternoon someone could have picked up a phone and dialed the published number for the law firm, killing two birds with one stone. Richard Hartman wrote: > > > -----Original Message----- > > From: Ian Hay [mailto:ian.hay@sympatico.ca] > > Sent: Friday, April 28, 2000 2:57 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] NY Times Article about the case > > > > > > Eric Seppanen wrote: > > > > > > On Fri, Apr 28, 2000 at 02:33:55PM -0400, Ian Hay wrote: > > > > Martin Garbus [allegedly] wrote: > > > > > > > > > > pleasae do submiyt amicus brief.We are now facing a > > linking motion.it is returnable in May.I would like you to > > write kaplan anad ask for permission to file.do it NOW.call > > me at 8265522(office) 7341096 home both at 212 > > > > > > > > Is this a bad joke? > > > > > Gee, that's not very polite. The headers look legitimate to me. > > > > If it's truly Garbus, then my humble and sincere apologies - but my > > honest guess is that such a well-respected attorney has a > > better command > > of the language. > > > > True ... but possibly not a better command of the keyboard. > > Many high-powered people, especially if they rely upon secretaries, > come off very poorly when they have to use the keyboard themselves. > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail: synthesis@travel-net.com From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 19:33:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24147 for dvd-discuss-outgoing; Fri, 28 Apr 2000 19:33:54 -0400 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 TAA24144 for ; Fri, 28 Apr 2000 19:33:53 -0400 Received: from [38.32.10.96] (helo=ip96.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 12lKH2-0004Zc-00; Fri, 28 Apr 2000 19:34:17 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NY Times Article about the case Date: Fri, 28 Apr 2000 19:28:48 -0400 Message-ID: References: <20000428153635.A3653@localhost> In-Reply-To: <20000428153635.A3653@localhost> X-Mailer: Forte Agent 1.8/32.548 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 TAA24145 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 28 Apr 2000 15:36:36 -0600, Paul Fenimore wrote: >The telephone number and a telephone book for NY are a good solution for >the careful/paranoid. Look up Garbus' firm, and verify the tele number >if you're inclined. > >That or you can trust DNS and get the tele number from their web page: > Checking the [208.130.*] IP address ( http://ipindex.dragonstar.net/c/208/208_130.html ) 208.130.17.128 - 208.130.17.159 FRANKFURT GARBUS KLEIN SEIZ (NETBLK-MCI-208-130-17-159) so that part looks OK... A reverse lookup on the phone #s ( http://www.anywho.com/telq.html ) turns up an error on the biz # and a guy named Tang on 76th St for the home #, so who knows... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 19:39:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24703 for dvd-discuss-outgoing; Fri, 28 Apr 2000 19:39:59 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA24700 for ; Fri, 28 Apr 2000 19:39:58 -0400 Message-ID: <20000428233952.14322.qmail@web515.mail.yahoo.com> Received: from [24.28.154.65] by web515.mail.yahoo.com; Fri, 28 Apr 2000 16:39:52 PDT Date: Fri, 28 Apr 2000 16:39:52 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] NY Times Article about the 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 --- Lewis E Wolfgang wrote: > > On Fri, 28 Apr 2000, Martin Garbus wrote: > > > pleasae do submiyt amicus brief.We are now facing a linking motion. > > it is returnable in May.I would like you to write kaplan anad ask > for > > permission to file.do it NOW.call me at 8265522(office) 7341096 > home > > both at 212 > > I would be inclined to think that this is a bogus message. The > raw headers indicate that the message originated at IP address > 131.44.121.4. DNS reports this as fsgate03.randolph.af.mil. Is > Martin Garbus in the US Air Force? This is MY work IP gateway. I work as a database consultant at Randolph AFB. Possibly you were reading the traces of the replied to message? Incidentally, the work phone number is correct. There is also an associate getting the list traffic at Garbus's firm. I have written to this person and asked them to confirm if the email in question is authentic. There are two possibilities: A) it's real or B) it's forged. We'll know which when we get a response from his associate. I suspect that Mr. Garbus did not realize that the email forwarded to him contained an address that went to 168 people. His time is no doubt expensive ( hundereds of dollars per hour) and he is self-admittedly not technically savy, so it is certainly believable that this is from him. The other emails I've received from him were also rather brief. Let's not rush to judgement. __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 19:46:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25455 for dvd-discuss-outgoing; Fri, 28 Apr 2000 19:46:48 -0400 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 TAA25452 for ; Fri, 28 Apr 2000 19:46:47 -0400 Received: from [38.32.10.96] (helo=ip96.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 12lKTW-0004lg-00; Fri, 28 Apr 2000 19:47:11 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Disney VP on Privacy Date: Fri, 28 Apr 2000 19:41:42 -0400 Message-ID: X-Mailer: Forte Agent 1.8/32.548 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 TAA25453 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You're gonna love this one... Business Group Seeks Alternatives To Courts http://www.techweb.com/wire/story/TWB20000427S0018 '"Criminals can not hide behind privacy acts," he said. "Rights holders need access to the names of alleged infringers." He said judicial proceedings "tend to be too long," to help against piracy and better technology is needed to prevent piracy. Litvak was not available for further questions.' __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Apr 28 22:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05454 for dvd-discuss-outgoing; Fri, 28 Apr 2000 22:20:53 -0400 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 WAA05451 for ; Fri, 28 Apr 2000 22:20:52 -0400 Received: from sympatico.ca ([206.172.198.68]) by tomts2-srv.bellnexxia.net (InterMail vM.4.01.02.17 201-229-119) with ESMTP id <20000429001334.KQLA1435.tomts2-srv.bellnexxia.net@sympatico.ca> for ; Fri, 28 Apr 2000 20:13:34 -0400 Message-ID: <390A2A0D.5758FB09@sympatico.ca> Date: Fri, 28 Apr 2000 20:17:17 -0400 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] NY Times Article about the case References: <20000428233952.14322.qmail@web515.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: > There are two possibilities: A) it's real or B) it's forged. We'll know > which when we get a response from his associate. > > I suspect that Mr. Garbus did not realize that the email forwarded to > him contained an address that went to 168 people. His time is no doubt > expensive ( hundereds of dollars per hour) and he is self-admittedly > not technically savy, so it is certainly believable that this is from > him. The other emails I've received from him were also rather brief. > > Let's not rush to judgement. If it's truly him, and he was just rushed or doesn't have a command of his e-mail client, etc, then I'm truly embarrassed. I just naturally assumed, given the ease with which someone can forge an e-mail header and the fact that any joker can subscribe to this list, that it was just somebody screwing around. Apologies again for the quick judgement. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 00:22:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15169 for dvd-discuss-outgoing; Sat, 29 Apr 2000 00:22:37 -0400 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 AAA15166 for ; Sat, 29 Apr 2000 00:22:36 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id AAA27649; Sat, 29 Apr 2000 00:23:01 -0400 Date: Sat, 29 Apr 2000 00:23:01 -0400 From: Jim Bauer Message-Id: <200004290423.AAA27649@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Sega Question Newsgroups: local.dvd-discuss In-Reply-To: <3909A024.76EEA614@sympatico.ca> References: <20000428051955.13222.qmail@web513.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ian Hay wrote: > >"Clickwrap" licenses are distinct from shrinkwrap licenses only in the >second respect: provided they are designed properly, the buyer is forced >to read, or at least scroll through, the agreement prior to installing >the software. In my reading, this -eliminates- the controvery: it can >hardly be said that a person is unaware of the existence of license >terms when they are forced to make the positive step of clicking 'agree' >before the software is even installed on the machine. The only thing they are forced to do is click a stupid button. As far as I can see, no one in their right mind ever bothers to read those things. And even if they did, I am willing to bet that the vast majority of people would not even understand what they just read. Now I am sure that is not much of an excuse, but perhaps it should be. As best, these people are probably aware there is some sort of license, but most likely not of the terms. It is ignorence by choice. And believe me, ignorence is bliss. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 16:17:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24686 for dvd-discuss-outgoing; Sat, 29 Apr 2000 16:17:00 -0400 Received: from dial95.roadrunner.com (dial95.cybermesa.com [209.12.75.95] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24683 for ; Sat, 29 Apr 2000 16:16:57 -0400 Received: (from paul@localhost) by dial95.roadrunner.com (8.8.7/8.8.7) id OAA00678 for dvd-discuss@eon.law.harvard.edu; Sat, 29 Apr 2000 14:21:36 -0600 Date: Sat, 29 Apr 2000 14:21:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Second injunction Message-ID: <20000429142135.A672@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 The second injunction is answerable in May, I'm not sure when. For this reason, this is an issue is of immediate importance. Issues I see: 1. URLs don't really need html tags as delimiters. 2. Any citation sufficiently precise to guarantee that a person can reliably follow it can also be automated. By plaintiffs' reasoning, citations could be banned if there is a wide-spread infrastructure for following citations. 3. The plaintiffs are (deliberately?) confusing the "function" of colorizing text on the screen with the act of retrieval which is initiated by a human being. 4. If the link "causes a signal to be sent," then why do I not see as many new pages as there are links on the old page? 5. If links generate a signal, why is it necessary to click with a mouse, etc.? 6. By only talking about links, they are ignoring HTTP. 7. They are ignoring the fact that none of the "contraband" data pass through 2600's computers. 8. If links are "effectively hard-wired," then why do broken links exist? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 16:31:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25814 for dvd-discuss-outgoing; Sat, 29 Apr 2000 16:31:08 -0400 Received: from zork.zork.net (zork.NET [204.94.189.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25811 for ; Sat, 29 Apr 2000 16:31:05 -0400 Received: from schoen by zork.zork.net with local (Exim 2.05 #1 (Debian)) id 12ldtg-0001Ho-00; Sat, 29 Apr 2000 13:31:28 -0700 Date: Sat, 29 Apr 2000 13:31:28 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Second injunction Message-ID: <20000429133128.Q13889@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000429142135.A672@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000429142135.A672@localhost>; from fenimore@roadrunner.com on Sat, Apr 29, 2000 at 02:21:36PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > The second injunction is answerable in May, I'm not sure when. > For this reason, this is an issue is of immediate importance. Would it do any good to try to get some computer, Internet, or WWW pioneers or experts to file depositions in support of a motion against this injunction? I'm sure a lot of people are concerned about this issue. -- 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 Sat Apr 29 17:00:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28110 for dvd-discuss-outgoing; Sat, 29 Apr 2000 17:00:23 -0400 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 RAA28107 for ; Sat, 29 Apr 2000 17:00:23 -0400 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 RAA25171 for ; Sat, 29 Apr 2000 17:00:49 -0400 (EDT) Message-Id: <4.2.2.20000429164246.00a86850@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 29 Apr 2000 17:00:46 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Second injunction In-Reply-To: <20000429133128.Q13889@zork.net> References: <20000429142135.A672@localhost> <20000429142135.A672@localhost> 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'd like to call Martin Garbus on Monday to discuss this (the time schedule and what support Openlaw could offer). What do we think this group can realistically commit to doing to help? The issue of enjoining hyperlinks clearly has implications far beyond the DeCSS controversy. The idea that a core element of the Web, a citation format that makes it easier to follow the interplay of ideas from one communication to another, is speech that can be prohibited or action rather than speech should outrage even those who dislike the speech on the other end of a given link. Even if the interplay between this idea and the scope of an injunction may be more legalistic than it's useful for us to examine, I would think that we could do good work on the technical absurdity of enjoining hyperlinks and the amount of expression such an injunction would take with it. I'd like to hear your thoughts on-list or off. --Wendy At 01:31 PM 4/29/00 -0700, schoen@loyalty.org wrote: >Paul Fenimore writes: > > > The second injunction is answerable in May, I'm not sure when. > > For this reason, this is an issue is of immediate importance. > >Would it do any good to try to get some computer, Internet, or WWW >pioneers or experts to file depositions in support of a motion against >this injunction? > >I'm sure a lot of people are concerned about this issue. > >-- >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 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 Sat Apr 29 18:03:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00389 for dvd-discuss-outgoing; Sat, 29 Apr 2000 18:03:37 -0400 Received: from sirius.infonex.com (sirius.infonex.com [216.34.245.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA00383 for ; Sat, 29 Apr 2000 18:03:35 -0400 Received: from ppp.anonymizer.com (c01-093.015.popsite.net [64.24.72.93]) by sirius.infonex.com (8.8.8/8.8.8) with ESMTP id PAA09520 for ; Sat, 29 Apr 2000 15:03:55 -0700 (PDT) Message-Id: <4.3.1.2.20000429145031.0493f290@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.1 Date: Sat, 29 Apr 2000 15:00:40 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Second injunction In-Reply-To: <4.2.2.20000429164246.00a86850@law.harvard.edu> References: <20000429133128.Q13889@zork.net> <20000429142135.A672@localhost> <20000429142135.A672@localhost> 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 05:00 PM 4/29/2000 -0400, Wendy Seltzer wrote: >I'd like to call Martin Garbus on Monday to discuss this (the time >schedule and what support Openlaw could offer). What do we think this >group can realistically commit to doing to help? Wendy calling Martin is an excellent idea. Much better to find out exactly what he wants than to flail about, and with no disrespect to non-lawyers here, this (rarely contributing) lawyer thinks the conversation would be much more productive if lawyer to lawyer. >The issue of enjoining hyperlinks clearly has implications far beyond the >DeCSS controversy. The idea that a core element of the Web, a citation >format that makes it easier to follow the interplay of ideas from one >communication to another, is speech that can be prohibited or action >rather than speech should outrage even those who dislike the speech on the >other end of a given link. I've been too busy to keep up with all of the posts here, but are "we" aware of the recent decision in Ticketmaster v. tickets.com? http://www.gigalaw.com/library/ticketmaster-tickets-2000-03-27.html And, as some idiot wrote eons ago: ALLEGED IMPERMISSIBLE LINKING You state that Mr. Haselton has placed links to various Solid Oak sites on the www.peacefire.org site. Of course you are correct, but your assertion that Mr. Haselton needed permission to do this is nonsense. A URL (the "U", of course, standing for "universal") is merely a machine readable encoding of a label identifying the work in the form how://where/what: It is no different than providing the card catalog number for a book already in the library. Solid Oak already is on the internet, where, by definition, its presence is public, regardless of whether Solid Oak is a public corporation or a private corporation. Mr. Haselton simply has told people where to find Solid Oak and given them the means to get there without having to type in a URL. Would you contend that Mr. Haselton needs your permission to write on the Peacefire site that "The URL for Solid Oak Software, Inc. is http://www.solidoak.com"? Would you contend that Mr. Haselton needs your permission to state that Solid Oak's address is P.O. Box 6826, Santa Barbara, CA 93160? That Solid Oak's telephone number is (805) 962-9853, or that its fax number is (805) 967-1614? Since you are in the business of making internet software products, no doubt you should appreciate that linking one web site to another, or to hundreds of others, which in turn could be linked to thousands of others, is the raison d'etre of the World Wide Web. If linking required permission (which it does not) or was unlawful (which it is not) then, as a practical matter, the web would die. Since Solid Oak's business depends on the web flourishing, I doubt that you would want to see that happen. However, regardless of what you might want, there is no law and there is no policy which prevents Mr. Haselton from including links to Solid Oak on the Peacefire site. The same is true for Solid Oak's email addresses, many of which are listed on Solid Oak's own web pages. Solid Oak's URLs are pure information, not protected under any intellectual property law of which I am aware. Disclosing and/or linking to them is neither trespass nor any other offense. http://www.peacefire.org/archives/SOS.letters/james.tyre.2.bm.txt -------------------------------------------------------------------- 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 Apr 29 18:30:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA02408 for dvd-discuss-outgoing; Sat, 29 Apr 2000 18:30:18 -0400 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 SAA02405 for ; Sat, 29 Apr 2000 18:30:18 -0400 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA10085; Sat, 29 Apr 00 18:32:47 EDT 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 SAA13657 for ; Sat, 29 Apr 2000 18:30:44 -0400 (EDT) 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 SAA27814 for ; Sat, 29 Apr 2000 18:30:44 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id SAA18988; Sat, 29 Apr 2000 18:30:44 -0400 (EDT) Date: Sat, 29 Apr 2000 18:30:44 -0400 (EDT) Message-Id: <200004292230.SAA18988@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Second injunction References: <20000429142135.A672@localhost> <20000429142135.A672@localhost> <20000429133128.Q13889@zork.net> In-Reply-To: <4.2.2.20000429164246.00a86850@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Wendy Seltzer > Even if the interplay between this idea and the scope of an injunction may > be more legalistic than it's useful for us to examine, I would think that > we could do good work on the technical absurdity of enjoining hyperlinks > and the amount of expression such an injunction would take with it. Long ago, I had an idea of making a modified browser I called "LawyerScape". The concept was to add features or parsing abilities that clarified the absurdities of whatever legal ban was under discussion. There's nothing magical about a "hyperlink". It's a just a text convention. So why not add a few more, English-like, conventions? Maybe something along the lines of: "Located-on-this-machine:eon.law.harvard.edu,in-directory:openlaw/DVD" I never did anything to implement the idea, because it was going to be an amount of work that was prohibitive as a single individual doing it as pure volunteer effort (and my technical contributions to free-speech had a nasty tendency to being negative-return). But now that there's more open source for browsers, and possibly more people are interested in such a project, perhaps someone else will take it on. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu --------------------------------------------------------------------- From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 20:01:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08994 for dvd-discuss-outgoing; Sat, 29 Apr 2000 20:01:20 -0400 Received: from web208.mail.yahoo.com (web208.mail.yahoo.com [128.11.68.108]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA08991 for ; Sat, 29 Apr 2000 20:01:19 -0400 Received: (qmail 22590 invoked by uid 60001); 30 Apr 2000 00:01:45 -0000 Message-ID: <20000430000145.22589.qmail@web208.mail.yahoo.com> Received: from [64.24.64.70] by web208.mail.yahoo.com; Sat, 29 Apr 2000 17:01:45 PDT Date: Sat, 29 Apr 2000 17:01:45 -0700 (PDT) From: Marcia Wilbur Subject: Re: [dvd-discuss] Second injunction 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 Well, just as a thought, if the court needs/wants a professional or credible opinion on hyperlinks, why not just email Tim Berners Lee at - timbl@w3.org. He can help with credibility, since he invented the www and such. -marcia wilbur ===== http://www.merchantsave.com/3d.html __________________________________________________ Do You Yahoo!? Talk to your friends online and get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 20:48:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12533 for dvd-discuss-outgoing; Sat, 29 Apr 2000 20:48:59 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA12530 for ; Sat, 29 Apr 2000 20:48:58 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 12lhvF-0006jk-00; Sun, 30 Apr 2000 02:49:21 +0200 Received: from localhost by sites.inka.de with local id 12lhvI-0007gB-00; Sun, 30 Apr 2000 02:49:24 +0200 Date: Sun, 30 Apr 2000 02:49:24 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Second injunction Message-ID: <20000430024924.A29435@inka.de> References: <20000429142135.A672@localhost> <20000429142135.A672@localhost> <20000429133128.Q13889@zork.net> <4.2.2.20000429164246.00a86850@law.harvard.edu> <200004292230.SAA18988@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200004292230.SAA18988@oobleck.mit.edu>; from sethf@MIT.EDU on Sat, Apr 29, 2000 at 06:30:44PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Long ago, I had an idea of making a modified browser I called > "LawyerScape". The concept was to add features or parsing abilities that > clarified the absurdities of whatever legal ban was under discussion. > There's nothing magical about a "hyperlink". It's a just a text convention. > So why not add a few more, English-like, conventions? Maybe something along > the lines of: > "Located-on-this-machine:eon.law.harvard.edu,in-directory:openlaw/DVD" > > I never did anything to implement the idea, because it was > going to be an amount of work that was prohibitive as a single > individual doing it as pure volunteer effort (and my technical > contributions to free-speech had a nasty tendency to being negative-return). > But now that there's more open source for browsers, and possibly more people > are interested in such a project, perhaps someone else will take it on. Something like this may be better implemented as a proxy rather than a browser. Incoming HTML or other data could be parsed and converted to whatever HTML would provide the desired effect in the browser. Sham -- "No dictator, no invader, can hold an imprisoned population by force of arms forever. There is no greater power in the universe than the need for freedom. Against that power, governments and tyrants and armies cannot stand." (Ambassdor G'Kar, Babylon 5) http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 22:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21471 for dvd-discuss-outgoing; Sat, 29 Apr 2000 22:50:36 -0400 Received: from ivc1.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA21468 for ; Sat, 29 Apr 2000 22:50:34 -0400 Received: from mindspring.com (jeffw@firefly.ivc.com [216.27.56.74]) by ivc1.ivc.com (8.8.7/8.8.7) with ESMTP id WAA18451 for ; Sat, 29 Apr 2000 22:51:01 -0400 Message-ID: <390B9E55.452C74A8@mindspring.com> Date: Sat, 29 Apr 2000 22:45:41 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.15pre19-dvd i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: (Presentation of HTML) Re: [dvd-discuss] Second injunction References: <20000429142135.A672@localhost> <20000429142135.A672@localhost> <20000429133128.Q13889@zork.net> <4.2.2.20000429164246.00a86850@law.harvard.edu> <200004292230.SAA18988@oobleck.mit.edu> <20000430024924.A29435@inka.de> 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 Sham Gardner wrote: > > Long ago, I had an idea of making a modified browser I called > > "LawyerScape". The concept was to add features or parsing abilities that > > clarified the absurdities of whatever legal ban was under discussion. > > There's nothing magical about a "hyperlink". It's a just a text convention. > > So why not add a few more, English-like, conventions? Maybe something along > > the lines of: > > "Located-on-this-machine:eon.law.harvard.edu,in-directory:openlaw/DVD" > > > > I never did anything to implement the idea, because it was > > going to be an amount of work that was prohibitive as a single > > individual doing it as pure volunteer effort (and my technical > > contributions to free-speech had a nasty tendency to being negative-return). > > But now that there's more open source for browsers, and possibly more people > > are interested in such a project, perhaps someone else will take it on. > > Something like this may be better implemented as a proxy rather than a > browser. Incoming HTML or other data could be parsed and converted to > whatever HTML would provide the desired effect in the browser. > > Sham Well this is waaaaay off the topic but re-writing of HTML using some proxy server so that is is presented differently is 1) contrary to the original presentation-independant nature of HTML and 2) Is either a poor choice as it forces a presentation on users of the proxy server that don't want that presentation, or negates the usefulness of cacheing and 3) violates the approach that browsers are in fact the agents that do control presentation. Now of course if you suggested it because all that it would require is some quick hack, I agree with that. Back on the topic. If there were such a browser what would it prove? It would be neither more nor less enabling and it is unlikely that people would switch from their favorite browser anyway. But in any case it's probably enough to simply describe how it might work for the sake of argument to illustrate what is actually going on. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Sat Apr 29 23:00:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22234 for dvd-discuss-outgoing; Sat, 29 Apr 2000 23:00:22 -0400 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 XAA22231 for ; Sat, 29 Apr 2000 23:00:21 -0400 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA05385; Sat, 29 Apr 00 23:02:51 EDT 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 XAA00844 for ; Sat, 29 Apr 2000 23:00:48 -0400 (EDT) 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 XAA17921 for ; Sat, 29 Apr 2000 23:00:48 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id XAA19299; Sat, 29 Apr 2000 23:00:47 -0400 (EDT) Date: Sat, 29 Apr 2000 23:00:47 -0400 (EDT) Message-Id: <200004300300.XAA19299@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: (Presentation of HTML) (was Second injunction) In-Reply-To: <390B9E55.452C74A8@mindspring.com> References: <20000429142135.A672@localhost> <20000429142135.A672@localhost> <20000429133128.Q13889@zork.net> <4.2.2.20000429164246.00a86850@law.harvard.edu> <200004292230.SAA18988@oobleck.mit.edu> <20000430024924.A29435@inka.de> <390B9E55.452C74A8@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Jeff Waller > Back on the topic. If there were such a browser what would it prove? > It would be neither more nor less enabling and it is unlikely that people > would switch from their favorite browser anyway. But in any case it's > probably enough to simply describe how it might work for the sake of > argument to illustrate what is actually going on. The idea is that it would be a patch or modification to a standard browser, so people who liked that browser could use the "Lawyer version" by default. No, it's NOT enough to simply describe how it might work. The whole idea is that an argument which is technical and abstract might be utterly and completely obvious to netheads, but needs a concrete implementation to bring it home. I've found this out more than once in projects. People need something they can "touch". It can be the creakiest hack, but it's got to be there, something they can play with, something which is working in front of them. That is orders of magnitude more convincing than any string of words. --------------------------------------------------------------------- Seth Finkelstein Consulting Web Programmer sethf@mit.edu ---------------------------------------------------------------------